Opposition Brief — Danny Hill, Petitioner v. Tim Shoop, Warden

Supreme Court briefJan 12, 2024

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No. 23-6276

In the Supreme Court of the United States

___________________________________

DANNY LEE HILL,

Petitioner,

TIM SHOOP, Warden

Respondent.

___________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

___________________________________

BRIEF IN OPPOSITION

___________________________________

DAVE YOST

Attorney General of Ohio

MICHAEL J. HENDERSHOT*

Chief Deputy Solicitor General

*Counsel of Record

ZACHERY P. KELLER

Deputy Solicitor General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

michael.hendershot@ohioago.gov

Counsel for Respondent

CAPITAL CASE – NO EXECUTION DATE SET

QUESTION PRESENTED

In 1986, an Ohio court convicted Danny Hill of several crimes, including the

rape and aggravated murder of a twelve-year-old child. At trial, the State submitted

various pieces of evidence against Hill, including Hill’s own confession and the observations of witnesses who were near the crime scene when the crime occurred. The

State also called an expert witness who testified that Hill had bitten the victim. That

expert excluded Hill’s accomplice—Timothy Combs—as the biter. Hill offered conflicting testimony from a different bitemark expert, who said that the evidence did

not allow for a definitive conclusion as to which of the two suspects bit the victim.

Long after filing his first habeas petition, Hill filed a second habeas petition.

Within that second petition, Hill argues that, although the State’s bitemark evidence

was admissible at the time of Hill’s trial, current standards would no longer allow a

bitemark expert to definitively identify him as the one who bit the victim. According

to Hill, that means his trial and convictions violated the Fourteenth Amendment’s

Due Process Clause.

Hill’s current certiorari petition presents this question: Is Hill’s second habeas

petition—challenging the introduction of bitemark evidence at Hill’s trial—a “second

or successive” petition within the meaning of 28 U.S.C. §2244(b)?

LIST OF PARTIES

The Petitioner is Danny Lee Hill, an inmate at the Chillicothe Correctional

Institution.

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

LIST OF DIRECTLY RELATED PROCEEDINGS

The petition’s list of directly related proceedings is incomplete. It omits the

following proceeding: Hill v. Ohio, 19-6567 (U.S. Jan. 13, 2020) (denying certiorari).

iii

TABLE OF CONTENTS

Page

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

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

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

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

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

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

JURISDICTION............................................................................................................. 3

STATEMENT ................................................................................................................. 3

REASONS FOR DENYING THE WRIT ..................................................................... 13

II.

The en banc Sixth Circuit’s decision creates no conflict. ........................... 14

This Court’s cases say that, in a few limited scenarios, a second-intime habeas petition is not a “second or successive” petition. .............. 14

The decision below is consistent with this Court’s cases. ..................... 18

The decision below creates no split between the circuits. .................... 20

The Court should not further delay an end to these already-delayed

federal habeas proceedings. ........................................................................ 25

CONCLUSION............................................................................................................. 28

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................................................................. 6

Balter v. United States,

858 F. App'x 572 (3d Cir. 2021) ............................................................................ 19

Banister v. Davis,

140 S. Ct. 1698 (2020) ..................................................................................... 16, 18

Benchoff v. Colleran,

404 F.3d 812 (3d Cir. 2005) .................................................................................. 21

Brown v. Atchley,

76 F.4th 862 (9th Cir. 2023) ................................................................................. 17

Brown v. Davenport,

596 U.S. 118 (2022) ............................................................................................... 14

Buntion v. Lumpkin,

31 F.4th 952 (5th Cir. 2022) ................................................................................. 17

Castro v. United States,

540 U.S. 375 (2003) ................................................................................................. 3

Crouch v. Norris,

251 F.3d 720 (8th Cir. 2001) ................................................................................. 21

DA's Off. v. Osborne,

557 U.S. 52 (2009) ................................................................................................. 26

Davis v. Kelley,

854 F.3d 967 (8th Cir. 2017) ........................................................................... 17, 19

Dickerson v. United States,

530 U.S. 428 (2000) ............................................................................................... 24

Flanagan v. Johnson,

154 F.3d 196 (5th Cir. 1998) ................................................................................. 21

Flores-Ramirez v. Foster,

811 F.3d 861 (7th Cir. 2016) ............................................................................ 17-18

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................................................................... 16

Garcia v. Quarterman,

573 F.3d 214 (5th Cir. 2009) ........................................................................... 21, 22

Harrington v. Richter,

562 U.S. 86 (2011) ................................................................................................. 25

Hill v. Anderson,

300 F.3d 679 (6th Cir. 2002) ................................................................................... 6

Hill v. Anderson,

881 F.3d 483 (6th Cir. 2018) ................................................................................... 6

Hill v. Anderson,

960 F.3d 260 (6th Cir. 2020) ................................................................................... 7

Hill v. Anderson,

No. 4:96CV0795, 2014 WL 2890416 (N.D. Ohio June 25, 2014) ........................... 6

Hill v. Anderson,

No. 96-cv-0795, 1999 U.S. Dist. LEXIS 23332 (N.D. Ohio Sept. 29, 1999) .......... 6

Hill v. Ohio,

140 S. Ct. 884 (2020) ............................................................................................... 9

Hill v. Shoop,

11 F.4th 373 (6th Cir. 2021) .................................................................. , 1, 7, 13, 26

Hill v. Shoop,

142 S. Ct. 2579 (2022) ............................................................................................. 7

Howard v. State,

300 So. 3d 1011 (Miss. 2020) ................................................................................ 21

Johnson v. Wynder,

408 F. App'x 616 (3d Cir. 2010) ............................................................................ 18

In re Jones,

652 F.3d 603 (6th Cir. 2010) ........................................................................... 18, 23

Magwood v. Patterson,

561 U.S. 320 (2010) ....................................................................... 10, 15, 16, 24, 25

McAleese v. Brennan,

483 F.3d 206 (3d Cir. 2007) .................................................................................. 21

McCleskey v. Zant,

499 U.S. 467 (1991) ............................................................................................... 14

Panetti v. Quarterman,

551 U.S. 930 (2007) ........................................................ 2, 10, 11, 13, 16, 18, 19, 25

Restucci v. Bender,

599 F.3d 8 (1st Cir. 2010) ..................................................................................... 21

Rivas v. Fischer,

687 F.3d 514 (2d Cir. 2012) .................................................................................. 21

Shoop v. Hill,

139 S. Ct. 504 (2019) ......................................................................... 1, 6, 7, 13, 26

Shoop v. Twyford,

596 U.S. 811 (2022) ......................................................................................... 13, 26

In re Siggers,

132 F.3d 333 (6th Cir. 1997) ................................................................................. 12

Skinner v. Switzer,

562 U.S. 521 (2011) ............................................................................................... 24

Slack v. McDaniel,

529 U.S. 473 (2000) ............................................................................................... 11

State v. Hill,

64 Ohio St. 3d 313 (1992) .......................................................................... 3, 4, 5, 27

State v. Hill,

122 Ohio St. 3d 1502 (2009) .................................................................................... 6

State v. Hill,

125 N.E.3d 158 (Ohio Ct. App. 2018) ................................................ 4, 5, 8, 26, 27

State v. Hill,

156 Ohio St. 3d 1405 (2019) .................................................................................... 9

State v. Hill,

894 N.E.2d 108 (Ohio Ct. App. 2008) ..................................................................... 6

Stewart v. Martinez-Villareal,

523 U.S. 637 (1998) ......................................................................................... 16, 17

Stewart v. United States,

646 F.3d 856 (11th Cir. 2011) ............................................................................... 21

Storey v. Lumpkin,

142 S. Ct. 2576 (2022) ........................................................................................... 19

vii

In re Tibbetts,

869 F.3d 403 (6th Cir. 2017) ................................................................................. 17

Trump v. New York,

141 S. Ct. 530 (2020) ................................................................................. 17, 23, 24

Tyler v. Cain,

533 U.S. 656 (2001) ............................................................................................... 15

United States v. Hairston,

754 F.3d 258 (4th Cir. 2014) ........................................................................... 17, 21

United States v. McCalister,

545 F. App'x 718 (10th Cir. 2013) ......................................................................... 18

In re Weathersby,

717 F.3d 1108 (10th Cir. 2013) ............................................................................. 21

In re Wogenstahl,

902 F.3d 621 (6th Cir. 2018) ........................................................................... 20, 23

Statutes and Rules

28 U.S.C. §945 ............................................................................................................ 16

28 U.S.C. §1254 ............................................................................................................ 3

28 U.S.C. §2244 ........................................................... 2, 3, 9, 10, 12, 13, 15, 16, 20, 23

28 U.S.C. §2254 .............................................................................................. 15, 24, 26

Fed. R. App. P. 35 ...................................................................................................... 22

Ohio Crim. R. 33 .......................................................................................................... 7

Sup. Ct. R. 10 ............................................................................................................. 19

viii

INTRODUCTION

If Raymond Fife were alive today, he would be roughly fifty years old. But, in

1985, Danny Hill and Timothy Combs kidnapped, raped, and tortured Raymond (a

twelve-year-old child), inflicting injuries that this Court previously considered too

“horrific” to “describe.” Shoop v. Hill, 139 S. Ct. 504, 505 (2019) (per curiam). After

Hill and Combs were done committing their atrocities, they left Raymond in a field

to suffer and die. Augmenting the horror, Raymond’s father would be the one to

eventually discover his son’s near-lifeless body.

Soon after Raymond’s murder, an Ohio trial court convicted Hill of multiple

crimes and sentenced him to death. In the decades since, however, the wheels of

justice have turned slowly. As this case illustrates, even today, Hill continues to

challenge his convictions and sentence in the federal courts. All the while, Raymond’s

remaining family awaits an end to Hill’s proceedings. The federal courts bear some

responsibility for the delay. During review of Hill’s first habeas petition, a panel of

the Sixth Circuit twice granted Hill unjustified habeas relief. The State was forced,

therefore, to spend years correcting the panel’s mistakes before this Court and the en

banc Sixth Circuit. See id.; Hill v. Shoop, 11 F.4th 373 (6th Cir. 2021) (en banc).

This latest challenge concerns Hill’s second habeas petition, which he filed

about thirty-five years after Raymond’s murder. Through this second petition, Hill

argues that his trial violated the Fourteenth Amendment’s Due Process Clause because the prosecutor included unreliable evidence concerning bitemarks on Raymond’s body. Hill concedes that this bitemark evidence was “permitted” under odontology standards as they existed at the time of his trial. Pet. 6. But, with the

advantage of hindsight, Hill argues that such evidence would be impermissible today

applying modern standards in the field. See Pet. 5–8.

It should not have taken long to reject Hill’s second petition. The Antiterrorism

and Effective Death Penalty Act, or “AEDPA,” requires that courts of appeals screen

“second or successive” habeas petitions. 28 U.S.C. §2244(b)(3). And AEDPA strictly

limits when the courts of appeals may authorize the filing of such petitions. See

§2244(b)(2), (3)(C). Hill cannot meet AEDPA’s strict requirements—which in Hill’s

situation require a compelling showing of innocence, see §2244(b)(2)(B)(ii)—so his second petition should have never gotten off the ground. Yet a Sixth Circuit panel concluded that Hill did not need authorization to file his petition. Taking an expansive

reading of this Court’s decision in Panetti v. Quarterman, 551 U.S. 930 (2007), the

panel said that Hill’s challenge to bitemark evidence was unripe at the time of Hill’s

first petition, and thus exempt from AEDPA’s requirements. Pet. App. 7a–9a. The

en banc Sixth Circuit disagreed, by an eleven-to-three margin. A claim challenging

the reliability of bitemark evidence, the full court reasoned, was “always … available

to Hill.” Pet. App. 22a. Thus, AEDPA’s requirements for “second or successive” petitions applied.

Hill now asks this Court to review the en banc Sixth Circuit’s decision. The

Court should decline for two reasons. First, Hill is wrong to suggest that the decision

below contradicts this Court’s precedent or conflicts with the decisions of other circuits. Second¸ this Court should not further delay resolution of Hill’s federal habeas

proceedings, particularly because Hill’s underlying claim is so flawed.

JURISDICTION

Hill filed his second habeas petition in the Northern District of Ohio in 2020.

Pet. App. 1114a. He did so without receiving authorization under AEDPA to file a

“second or successive” petition. See 28 U.S.C. §2244(b)(3). The District Court transferred the matter to the Sixth Circuit for consideration of whether to authorize a second petition. Pet. App. 1a–2a. A panel of the Sixth Circuit held that, because Hill’s

second petition was not “second or successive,” Hill did not need authorization under

AEDPA to file his petition. Pet. App. 3a–9a. The Sixth Circuit granted en banc review, Pet. App. 10a–11a, and the full court held that Hill’s second petition was “second or successive” under AEDPA, Pet. App. 12a–25a. This Court has jurisdiction to

review whether Hill’s second petition is “second or successive.” Castro v. United

States, 540 U.S. 375, 380–81 (2003); 28 U.S.C. §1254.

STATEMENT

1. Almost forty years ago, Danny Hill and Timothy Combs captured Raymond

Fife—a twelve-year-old child—while Raymond was biking to a friend’s house. They

beat him. They strangled him with his own underwear and then lit it on fire, burning

his face. They bit his genitals. They raped him. They sodomized him with a broomstick, rupturing Raymond’s internal organs. Their torture of Raymond was so brutal

that the boy vomited on himself. Then, with Raymond still alive, Hill discarded Raymond’s battered and burned body in a field, where Raymond’s father eventually found

his son. Raymond died two days later. See State v. Hill, 64 Ohio St. 3d 313, 313–14

(1992).

The State indicted Hill on several counts, including kidnapping, rape, and aggravated murder with death-penalty specifications. Id. at 315.

2. Hill waived his right to a jury and stood trial before a panel of three statecourt judges. At trial, several witnesses testified to seeing Hill and Combs near the

crime scene around the time of the crime. Id. at 313. Hill’s own statements further

implicated him. Shortly after Raymond’s murder, Hill went to the police and tried to

cast suspicion on others. See id. at 314. But questioning revealed that Hill knew too

much about the crime, including information about Raymond’s underwear. Id. Hill

ultimately confessed to being present with Combs during “the beating and sexual

assault.” Id. at 315. Although Hill denied “direct involvement in the murder,” he

admitted to staying with Raymond “while Combs left the area of the attack to get the

broomstick and the lighter fluid used to burn the victim.” Id.

Despite Hill’s denial, considerable evidence established Hill’s active role in the

crime. See State v. Hill, 125 N.E.3d 158, 169–73 (Ohio Ct. App. 2018) (Grendell, J.,

op.), review denied by 156 Ohio St. 3d 1405 (2019). One witness, for example, saw

Hill throw a stick into the woods near the crime scene. Hill, 64 Ohio St. 3d at 313,

324. Police later recovered a broken broomstick from the area. A pathologist testified

that the stick fit into “the victim’s rectum” as would “a key in a lock.” Id. at 317.

Another witness heard a child screaming shortly after seeing Combs elsewhere,

suggesting Hill was torturing Raymond at that time. Id. at 313. Hill’s own brother

testified that he saw Hill washing what looked like a red stain out of his pants on the

night of the murder. Id. at 316.

Other testimony shed light on Hill’s motive, plan, and identity. Several witnesses testified to Hill’s past sexual misconduct, which revealed a pattern of brutally

violent rapes. Id. at 321–22. One trial witness even testified that Hill raped her at

knifepoint near the scene of Raymond’s murder. Id. at 322.

Additionally, both sides submitted expert testimony about bitemarks on

Raymond’s genitals. Dr. Curtis Mertz, a forensic odontologist, testified for the State

and opined that Hill’s teeth left the marks. Id. at 316. Dr. Mertz also excluded Combs

as the biter. Pet. App. 90a. Another forensic odontologist, Dr. Lowell Levine, testified

for the defense. In his opinion, the evidence did not support—with reasonable certainty—the conclusion that Hill made the bitemarks. Hill, 64 Ohio St. 3d at 316–17.

During closing statements, Hill’s counsel stressed the disagreement among the

bitemark experts. Counsel argued that, if two respected experts could not agree on

the significance of the bitemarks, such evidence could not possibly “pin” the

bitemarks “down to anybody.” Hill, 125 N.E.3d at 173–74 (Grendell, J., op.). It was

unclear why that mattered, however; the prosecution maintained that it had proven

Hill’s guilt without regard to the bitemarks. Id. at 174.

The three-judge panel presiding at the trial unanimously convicted Hill of most

counts, including aggravated murder. The court then sentenced Hill to death. Hill

challenged his convictions and sentence in state courts, both through direct appeal

and by seeking post-conviction relief. Those challenges failed.

3. Hill filed his first federal habeas petition in 1996. Among other things, Hill

argued that the state trial court erred by denying his post-conviction request for

expert assistance regarding bitemark evidence. Pet. App. 22a n.9. The District Court

denied the petition. Hill v. Anderson, No. 96-cv-0795, 1999 U.S. Dist. LEXIS 23332,

at *146 (N.D. Ohio Sept. 29, 1999). Hill appealed to the Sixth Circuit. While that

appeal was pending, this Court concluded that the Eighth Amendment prohibits executing the intellectually disabled. Atkins v. Virginia, 536 U.S. 304, 321 (2002). The

Sixth Circuit remanded Hill’s case, so that Hill could exhaust his Atkins claim in state

court. Hill v. Anderson, 300 F.3d 679, 681–83 (6th Cir. 2002).

4. Back in state court, Hill filed a post-conviction petition to vacate his death

sentence under Atkins. After extensive hearings, the state trial court determined

that Hill was not intellectually disabled. A state appellate court affirmed, State v.

Hill, 894 N.E.2d 108 (Ohio Ct. App. 2008), and the Supreme Court of Ohio denied

review, State v. Hill, 122 Ohio St. 3d 1502 (2009).

5. With his Atkins claim exhausted in the state courts, Hill continued with his

first habeas petition. He amended that petition to argue that he was ineligible for

the death penalty under Atkins.

Hill v. Anderson, No. 4:96CV0795, 2014 WL

2890416, at *22 (N.D. Ohio June 25, 2014). The District Court again rejected Hill’s

petition. Id. at *1, *59.

Hill appealed, and a panel of the Sixth Circuit granted Hill habeas relief. Hill

v. Anderson, 881 F.3d 483 (6th Cir. 2018). This Court summarily reversed. Shoop v.

Hill, 139 S. Ct. 504 (2019) (per curiam). The panel’s decision was “plainly improper,”

the Court explained, as the panel’s reasoning relied heavily on a case that “was not

handed down until long after the state-court decisions.” Id. at 505. This Court thus

vacated the panel’s award of habeas relief and remanded for further consideration.

Id. at 509.

On remand, a panel of the Sixth Circuit again granted Hill habeas relief. Hill

v. Anderson, 960 F.3d 260 (6th Cir. 2020) (per curiam). On that occasion, the en banc

Sixth Circuit stepped in to correct the error. Applying the deference to state-court

decisions that AEDPA requires, the en banc Sixth Circuit held that Hill was not entitled to relief on his Atkins claim. Hill v. Shoop, 11 F.4th 373, 380–81 (6th Cir. 2021)

(en banc). This Court later denied Hill’s petition for review of that decision. Hill v.

Shoop, 142 S. Ct. 2579 (2022).

6. With the above history in mind, rewind to 2016. While his Atkins-related

appeal was pending in the Sixth Circuit, Hill moved in state court for leave to file a

new-trial motion. Under Ohio Criminal Rule 33(B), defendants may belatedly move

for a retrial based on “newly discovered evidence” that they were “unavoidably prevented” from uncovering earlier. Hill sought a new trial, arguing that there was no

reliable scientific basis for the bitemark testimony the State had offered. Pet. App.

1243a. To support that argument, Hill relied on a 2013 change in guidelines from the

American Board of Forensic Odontology. The 2013 change cast doubt on the ability

of odontologists to use bitemarks to identify an individual “biter” in “open population”

cases. Pet. App. 1246a. By 2016, the Board was advising odontologists not to offer

“unconditional identification” of a specific biter in “open population case[s],” recommending instead that they say whether a suspected biter is “Excluded” or “Not Excluded.” Id. (quoting guidance). Based on these changes, Hill disputed the validity

of the bitemark evidence used at his trial. He argued, in turn, that the use of “unscientific” bitemark evidence to support his conviction violated the Fourteenth Amendment’s Due Process Clause. Pet. App. 696a.

After an evidentiary hearing, the state trial court allowed Hill to file a newtrial motion. Pet. App. 1237a. The trial court then denied Hill a new trial. In justifying that decision, the court accepted that “advancements in forensic odontology”

cast doubt on the reliability of the bitemark evidence at Hill’s trial. Pet. App. 1250a.

But after reviewing the trial record in its entirety, Pet. App. 1230a–36a, the court

determined that there was “no probability … that a new trial” without bitemark

evidence “would result in [a] different outcome,” Pet. App. 1256a. That was because

the “overwhelming evidence” supported Hill’s convictions and much of that evidence

came from Hill’s “admissions and observations from passersby,” not bitemark

experts. Pet. App. 1256a–57a.

The Ohio Court of Appeals affirmed. Hill, 125 N.E.3d 158. After a thorough

review of the record, id. at 169–73 (Grendell, J., op.), the lead opinion noted that, even

setting aside the bitemark evidence, “compelling” evidence established that Hill “active[ly]” participated in the crimes against Raymond Fife. Id. at 173. The court thus

rejected the claim that admission of bitemark evidence made Hill’s trial “so fundamentally unfair as to deprive [Hill] of due process.” Id. at 161. Along similar lines,

the court disagreed with Hill’s arguments that the trial court violated Hill’s due-process rights decades later by how it handled the new-trial motion. See id. at 163.

The Supreme Court of Ohio declined Hill’s request for discretionary review.

State v. Hill, 156 Ohio St. 3d 1405 (2019). This Court did the same. Hill v. Ohio, 140

S. Ct. 884 (2020).

7. In 2020, Hill filed a second habeas petition. Pet. App. 1114a–63a. The

petition argued that Hill’s “convictions and sentence violated his due-process rights

because they relied on now-discredited bite-mark evidence.” Pet. App. 3a; accord Pet.

App. 1114a–15a. Though less clear, the petition also argued that the state courts

violated Hill’s due-process rights by failing to sufficiently evaluate Hill’s new-trial

motion filed decades later. Pet. App. 1154a. As for relief, Hill requested “a new trial

sans the bitemark comparison testimony.” Pet. App. 1163a.

Hill’s second habeas petition faced an immediate barrier. AEDPA places strict

limits on “second or successive” habeas petitions. 28 U.S.C. §2244(b)(2). For example,

a petitioner who wishes to proceed on a claim about new facts “that could not have

been discovered previously” must show by clear and convincing evidence that—but

for constitutional error—“no reasonable factfinder would have found the [petitioner]

guilty of the underlying offense.” §2244(b)(2)(B). Additionally, a petitioner seeking

to file a “second or successive” habeas petition must receive permission from “the appropriate court of appeals” to do so. §2244(b)(3)(A).

Hill, however, filed his second habeas petition in the District Court, without

permission from the Sixth Circuit. To defend this maneuver, Hill invoked an exception to normal “second or successive” rules. By way of background, this Court has

suggested that a second petition raising claims that were previously unripe (at the

time of the first petition’s filing) might not be a “second or successive” petition. Panetti v. Quarterman, 551 U.S. 930, 947 (2007). Hill claimed that his petition was not

“second or successive” under this exception. According to Hill, he “could not have”

raised his bitemark challenge in his 1996 petition because the changes to bitemarkcomparison guidelines did not occur until 2013. Pet. App. 1118a.

The District Court disagreed. As a result, that court transferred the case to

the Sixth Circuit to decide whether to authorize Hill’s second petition under AEDPA.

Pet. App. 1a–2a.

8. In the Sixth Circuit, Hill once again convinced a panel to rule in his favor.

Specifically, a panel concluded that Hill’s second habeas petition was not a “second

or successive” petition within the meaning of §2244(b). Pet. App. 3a. From that conclusion, it followed that Hill did not need authorization to file his petition. Id.

The Sixth Circuit, however, granted the State’s request for en banc review.

Pet. App. 10a–11a. The full court—by a vote of eleven to three—held that Hill’s petition was “second or successive” under §2244(b) and thus needed to meet the provision’s gatekeeping requirements. Pet. App. 12a–13a.

The en banc Sixth Circuit acknowledged that, under this Court’s precedent,

there are “three circumstances when a petition is second in time but isn’t ‘second or

successive.’” Pet. App. 19a. First, when a second petition challenges a new statecourt judgment, it is not second or successive. Id. (citing Magwood v. Patterson, 561

U.S. 320, 339 (2010)). Second, when a second petition raises a claim that, “though

raised in the first petition, was unexhausted at that time and not decided on the

merits, the petition is not ‘second or successive.’” Pet. App. 19a–20a (citing Slack v.

McDaniel, 529 U.S. 473, 486–87 (2000)). Third, “a second petition containing a claim

… that would have been unripe at the time of the filing of the first petition is not

‘second or successive.’” Pet. App. 19a (citing Panetti, 551 U.S. at 943–45).

Hill’s second petition did not fall within the first two exceptions. Hill was challenging the same criminal judgment that he challenged in his first petition. Pet. App.

21a. And Hill did not claim within his first petition that the introduction of bitemark

evidence violated his right to due process. Pet. App. 22a. The critical question, therefore, was whether Hill’s second petition raised a claim—namely, Hill’s due-process

claim challenging the State’s use of bitemark evidence at trial—that was unripe at

the time of his first petition. See id.

The en banc Sixth Circuit answered that question in the negative. The court

stressed that Hill’s due-process claim “has always been available to” him. Id. After

all, “the events giving rise to Hill’s claim—the introduction of bitemark testimony at

trial—had already occurred when Hill filed his first petition.” Id. (quotations omitted). The full court contrasted Hill’s situation with a habeas petitioner challenging

parole determinations made after the petitioner’s initial habeas petition. Pet. App.

22a–23a. In the court’s view, parole determinations made after a first petition sometimes escape “second or successive” requirements, but claims “challeng[ing] events

that occurred” at trial do not. Id. (citing In re Jones, 652 F.3d 603, 606 (6th Cir.

2007)).

Hill’s attempts to reframe his arguments in terms of later state-court motion

practice, the en banc court added, did not change this conclusion. Recall that Hill at

times framed his due-process claim as being about the process he received when the

state trial court denied his motion for a new trial decades after his convictions. Pet.

App. 21a. But the denial of a new-trial motion, the full court reasoned, does not result

in a new judgment for purposes of habeas relief. Id. Accordingly, the court focused

its analysis on Hill’s core claim: that the use of bitemark evidence at his trial violated

the Due Process Clause. Id. And, for the reasons just discussed, the court concluded

such a claim was ripe at the time of Hill’s first habeas petition. Pet. App. 22a.

Judge Thapar authored a concurring opinion, which four others joined. Pet.

App. 26a–30a. Judge Thapar agreed with the lead opinion’s analysis, but he wrote

separately to stress a different point. Under AEDPA, courts of appeals “shall” decide

whether to authorize “a second or successive [habeas petition] not later than 30 days”

after a request to file. §2244(b)(3)(D). But the Sixth Circuit has read this command

as “advisory,” not “mandatory.” In re Siggers, 132 F.3d 333, 336 (6th Cir. 1997). In

Judge Thapar’s view, that reading is wrong. He submitted that the Sixth Circuit

“should honor—not ignore—the balance Congress struck in the thirty-day rule.” Pet.

App. 30a. One way to stay “true to the expectation implicit in AEDPA’s text,” Judge

Thapar posited, would be to treat requests not decided within thirty days as “automatically denied.” Pet. App. 28a.

Judge Clay, joined by Judge Moore and Judge Stranch, dissented. Pet. App.

12a, 31a–42a. According to Judge Clay, because Hill’s claim relied on changes to

professional standards that occurred long after his trial, “Hill could not have brought

his claim in his initial petition.” Pet. App. 38a.

9. Hill timely filed his current petition for certiorari.

REASONS FOR DENYING THE WRIT

The question presented is whether Hill’s second habeas petition escapes

AEDPA’s strict limits on “second or successive” habeas petitions. See 28 U.S.C.

§2244(b). According to the en banc Sixth Circuit, the answer is no. In reaching that

answer, the Sixth Circuit refused to extend the ripeness exception of Panetti v. Quarterman, 551 U.S. 930 (2007), to a petition challenging evidence introduced at trial.

For two reasons, this matter does not deserve this Court’s sustained attention.

First¸ the en banc Sixth Circuit’s decision accords with the decisions of this

Court and the circuits. Hill identifies no case—from either this Court or the other

circuits—that extends Panetti to cover a petition challenging the admission of evidence at trial. To be sure, the exact parameters of Panetti remain open to debate.

But neither this Court nor the circuits has taken Panetti as far as Hill desires.

Second, and more fundamentally, an end to Hill’s federal proceedings is long

overdue. Because federal habeas review greatly intrudes on state sovereignty, this

Court has repeatedly cautioned federal courts against actions that “needlessly prolong a habeas case.” Shoop v. Twyford, 596 U.S. 811, 820 (2022) (quotations omitted).

In Hill’s case, federal proceedings have already been ongoing for almost three decades. To make matters worse, the State has spent years in litigation correcting mistakes by panels of the Sixth Circuit. See Shoop v. Hill, 139 S. Ct. 504 (2019) (per

curiam); Hill v. Shoop, 11 F.4th 373 (6th Cir. 2021) (en banc); Pet. App. 12a–42a (en

banc decision below). The Court should not further prolong habeas review by granting certiorari. That is especially so because the underlying claim Hill seeks to pursue

through his second petition has no merit.

The en banc Sixth Circuit’s decision creates no conflict.

Hill argues that the en banc Sixth Circuit wrongly applied the law to the “nar-

row” circumstances Hill’s second petition presents. See Pet. 10. To make that seemingly factbound argument more attractive, Hill contends that the decision below “directly conflicts” with this Court’s precedent and decisions from the other circuits. Pet.

23. Hill is wrong on both fronts.

This Court’s cases say that, in a few limited scenarios, a secondin-time habeas petition is not a “second or successive” petition.

To understand the lack of discord, it helps to begin with some background. The

writ of habeas corpus originated as a tool for correcting jurisdictional defects in criminal judgments. Brown v. Davenport, 596 U.S. 118, 128 (2022). But over time, the

writ evolved into a mechanism for “[f]ull-blown constitutional error correction.” Id.

at 130. As the scope of habeas review expanded, courts looked for limits. Relevant

here, the abuse-of-writ doctrine forbade petitioners from pressing habeas claims that

they could have raised in prior petitions. Under the doctrine, if petitioners had “a

sufficient basis to allege a claim in the first petition,” they needed to bring the claim

there. McCleskey v. Zant, 499 U.S. 467, 498 (1991). “Omission of” a claim, this Court

warned, would “not be excused merely because evidence discovered later might also

have supported or strengthened the claim.” Id.

AEDPA codified and bolstered these abuse-of-writ principles. The critical

statutory provision says this:

(2) 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—

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable; or

(B)

(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence;

and

(ii) 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). This statute creates “two narrow exceptions” to the prohibition

on second or successive petitions. Tyler v. Cain, 533 U.S. 656, 661 (2001). (In this

context, “the word ‘petition’” is “interchangeabl[e] with the word ‘application.’” Magwood v. Patterson, 561 U.S. 320, 324 n.1 (2010).) The first exception applies when

this Court announces new, retroactively applicable rules.

The second governs

petitions raising claims resting on newly discovered facts. To satisfy the second

exception, petitioners must show good cause for their delay and also prove that the

newly discovered facts fatally undermine their “guilty verdict.” Cain, 533 U.S. at 662.

AEDPA also creates a process for screening “second or successive” petitions.

Before a district court considers such a petition, petitioners must “move in the

appropriate court of appeals for an order authorizing the district court to consider

the” petition. §2244(b)(3)(A). “The court of appeals may authorize the filing of a

second or successive,” petition only if the petition “makes a prima facie showing” that

it satisfies §2244(b)’s requirements. §2244(b)(3)(C).

This Court has read the phrase “second or successive” as a “term of art.” Magwood, 561 U.S. at 332. On this understanding, the phrase “second or successive” does

not capture all second-in-time habeas petitions. Panetti, 551 U.S. at 944. Instead, to

discern the boundaries of the phrase “second or successive,” the Court has looked to

(1) abuse of writ principles and (2) the “statutory aims” of AEDPA. Banister v. Davis,

140 S. Ct. 1698, 1705–06 (2020). What is more, the Court has held that “the phrase

‘second or successive’ must be interpreted with respect to the judgment challenged.”

Magwood, 561 U.S. at 333. Thus, if a second-in-time petition challenges a new criminal judgment, it is not “second or successive” under AEDPA. Id. at 342. Whereas, if

a second-in-time petition challenges an already-challenged judgment, then it is presumably “second or successive.”

The Court’s decision in Panetti outlines an exception to that last presumption.

Panetti addressed claims brought under Ford v. Wainwright, which held that the

Eighth Amendment forbids executing inmates who are legally insane at the time of

execution. 477 U.S. 399, 410 (1986). Panetti held that the “statutory bar on ‘second

or successive’ applications does not apply to a Ford claim brought in an application

filed when the claim is first ripe.” 551 U.S. at 947. This Ford-based exception rests

not on the text of §2244(b), but rather on “the ‘implications for habeas practice.’” Id.

at 945 (quoting Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998)). Panetti

observed that, because a Ford claim focuses on a prisoner’s “mental condition” at the

time of execution, it generally cannot be litigated “until after the time has run to file

a first federal habeas petition.” Id. at 934, 943. Panetti further reasoned that,

because “federal courts” cannot “resolve a prisoner’s Ford claim before execution is

imminent,” “AEDPA’s concern for finality” could not justify requiring petitioners to

raise Ford claims in their initial petitions. Id. at 946. Based on these practical

considerations, Panetti announced its Ford-based exception.

This Court, nonetheless, “took great care to expressly limit the reach of Panetti

to the unique circumstances of a Ford claim.” Davis v. Kelley, 854 F.3d 967, 972 (8th

Cir. 2017) (per curiam). And it has not since extended Panetti to any other type of

claim. Buntion v. Lumpkin, 31 F.4th 952, 961 (5th Cir. 2022) (per curiam). Even so,

the Sixth Circuit and others have read Panetti to capture other claims that were “unripe for review when the first habeas petition was filed.” In re Tibbetts, 869 F.3d 403,

406 (6th Cir. 2017); see also Brown v. Atchley, 76 F.4th 862, 867 (9th Cir. 2023);

United States v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014). But these specific applications of Panetti remain quite narrow. A claim is unripe only when its adjudication is “dependent on”—not simply assisted by—“contingent future events that may

not occur as anticipated, or indeed may not occur at all.” Trump v. New York, 141 S.

Ct. 530, 535 (2020) (quotations omitted). Thus, when applying Panetti, the circuits

have been “careful to distinguish genuinely unripe claims … from those in which the

petitioner merely has some excuse for failing to raise the claim in his initial petition.”

Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th Cir. 2016) (per curiam) (quoting

United States v. Obeid, 707 F.3d 898, 902 (7th Cir. 2013)); see also United States v.

McCalister, 545 F. App’x 718, 720 (10th Cir. 2013); Johnson v. Wynder, 408 F. App’x

616, 619 (3d Cir. 2010). Described another way, while Panetti perhaps allows second

petitions alleging violations that “occurred after the prisoner’s initial petition was

filed,” it does not allow second petitions alleging violations “that occurred at … trial.”

In re Curtis Jones, 652 F.3d 603, 605–06 (6th Cir. 2010).

The decision below is consistent with this Court’s cases.

Applying the above framework, the en banc Sixth Circuit refused to extend

Panetti to Hill’s second petition. The court stressed that the constitutional violation

Hill alleged—arising from “the introduction of bitemark testimony at trial”—“had already occurred when Hill filed his first petition.” Pet. App. 22a. It followed that Hill’s

due-process claim was not “unripe” when Hill “filed his first petition.” Id. Hill now

argues that the decision below “directly conflicts” with this Court’s precedent. Pet.

23. He is wrong.

The en banc Sixth Circuit accounted for this Court’s precedent in reaching its

decision. The court acknowledged, for example, that “second or successive” is a “term

of art” and that not all second-in-time petitions are second and successive. Pet. App.

18a–19a (quoting Banister, 140 S. Ct. at 1705). The court further read Panetti as

requiring an exemption for claims that “would have been unripe” at the time of a first

habeas petition. Pet. App. 19a (citing Panetti, 551 U.S. at 943–45). The court simply

disagreed with Hill regarding how the general rules from Panetti and other cases

applied to the specific circumstances of Hill’s second petition. Boiled down, Hill’s

argument is really that the Sixth Circuit misapplied properly stated rules of law to

the “narrow” scenario his case presents. See Pet. 10. That is the type of alleged error

that this Court “rarely” reviews. See Sup. Ct. R. 10.

In arguing otherwise, Hill features this Court’s decisions in Panetti and Martinez-Villareal. See Pet. 13. But he fails to establish any “direct[] conflict[],” Pet. 23,

between those decisions and the one below. Both Panetti and Martinez-Villareal involved petitioners raising Ford claims—and thus challenging their competency to be

executed. Hill raises a much different type of claim, with much different timing implications. With a Ford claim, any violation occurs at execution. But the supposed

violation that Hill alleges occurred during his trial. Panetti, moreover, was careful to

cabin its holding to the “unusual posture” of a “Ford-based incompetency claim.” 551

U.S. at 945; accord Davis, 854 F.3d at 972. Panetti thus left open the question of

whether, and to what extent, its rationale extended to other types of claims. It stands

to reason that the en banc Sixth Circuit did not contradict this Court’s precedent in

deciding a question that this Court has intentionally left undecided.

An analogy to a common post-conviction challenge drives the point home. All

circuits to have addressed the issue agree that Panetti does not extend to Brady

claims. Balter v. United States, 858 F. App’x 572, 575 & n.12 (3d Cir. 2021) (collecting

authority). Thus, the circuit consensus is that Panetti does not reach claims alleging

that prosecutors failed to disclose material information during trial. This Court has

declined to review that issue. Storey v. Lumpkin, 142 S. Ct. 2576 (2022). That makes

review even less justified here. In a Brady scenario, a habeas petitioner may not

know of the violation at the time of the first petition. Hill, however, was well aware

that bitemark evidence was admitted at his trial when he filed his first petition. In

short, Hill’s petition for review is weaker than petitions that this Court has already

rejected.

(To be clear, the circuit consensus that Panetti does not apply to Brady claims

is correct. Because Brady errors occur by trial’s end, they are always ripe when the

first habeas petition is filed, even if the facts necessary to prove the claim are not yet

known. And AEDPA expressly lays out when habeas petitioners may raise belated

claims based on “predicate facts” they “could not have … discovered” earlier.

§2244(b)(2)(B)(i). Thus, extension of Panetti to cover Brady claims “would considerably undermine” AEDPA’s statutory limits. In re Wogenstahl, 902 F.3d 621, 627 (6th

Cir. 2018) (quotations omitted).)

The decision below creates no split between the circuits.

Hill’s assertion of a circuit split fares no better. See Pet. 23. At best, Hill

identifies other circuits that—just like the Sixth Circuit—extend Panetti beyond Ford

claims. But Hill fails to identify any circuit that would extend Panetti to cover his

second petition.

Although Hill cites many circuit cases, he fails to develop arguments as to most

of them. See Pet. 12–16. Regardless, the decisions Hill identifies do not establish a

split between the circuits. As an example, Hill notes decisions from other circuits

discussing basic abuse-of-writ principles. Pet. 12. The en banc Sixth Circuit, however, acknowledged the relevance of those principles within its decision. Pet. App.

19a. So there is no disagreement on those grounds. Hill also cites several cases from

other circuits that were not even about whether a habeas petition was second or

successive. See, e.g., Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012); McAleese v. Brennan, 483 F.3d 206 (3d Cir. 2007); Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998);

cf. also Howard v. State, 300 So. 3d 1011 (Miss. 2020). Those cases likewise lay no

foundation for any square conflict.

The circuit cases Hill identifies also involve circumstances that are readily distinguishable from his case. For instance, Hill cites multiple cases involving parole

determinations. See, e.g., Restucci v. Bender, 599 F.3d 8 (1st Cir. 2010); Benchoff v.

Colleran, 404 F.3d 812 (3d Cir. 2005); Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001).

But there is no tension on that topic: in the Sixth Circuit, a petition “challenging a

parole determination that occurred after the prisoner’s initial petition was filed,” is

not “second or successive.” Pet. App. 22a–23a (alterations accepted, quotations omitted). Along similar lines, Hill cites cases involving habeas petitioners that—after

being sentenced—successfully attacked predicate convictions upon which their ultimate convictions rested. See, e.g., Hairston, 754 F.3d 258; Stewart v. United States,

646 F.3d 856 (11th Cir. 2011); cf. also In re Weathersby, 717 F.3d 1108 (10th Cir.

2013). But here, Hill’s convictions and sentence were not based on predicate convictions. Thus, whether these predicate-conviction scenarios escape AEDPA’s requirements has no bearing on Hill’s case.

Tellingly, in arguing a split, Hill also resorts to cases with unique fact patterns.

Take, for instance, Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009). That case

involved a Mexican citizen (Garcia) who was convicted of murder in Texas and sentenced to death. Id. at 216. Almost a decade later, an international court determined

that the United States had violated the rights of Garcia and others to consular access

under the Vienna Convention. Id. at 218. President Bush, in turn, ordered states to

review the cases identified in the international court’s decision. Id. But Texas courts

denied Garcia’s request for post-conviction relief. Garcia thus filed a federal habeas

petition—his second by that point—claiming that Texas courts needed to comply with

the international-court decision and President Bush’s declaration. Id. Faced with

this procedural puzzle, the Fifth Circuit concluded that Garcia’s claim “was not previously available to him,” making Garcia’s petition “non-successive.” Id. at 224.

The unusual fact pattern in Garcia hardly lines up with this case. That is,

there is little reason to think that the Fifth Circuit would view Hill’s claim (about

admission of evidence at his trial) the same way that it viewed Garcia’s claim (about

defiance of a post-conviction order from the federal government). To the extent Panetti applies to non-Ford claims, Panetti necessarily forces courts to draw fine distinctions between truly unripe claims and previously ripe claims that have become more

persuasive over time. See above 17–18. Given that reality, there is nothing surprising about Panetti leading to different outcomes in different factual scenarios.

Finally, Hill faults the en banc Sixth Circuit’s decision for departing from the

Sixth Circuit’s earlier decisions. E.g., Pet. 14–15. It is unclear why Hill thinks that

supports this Court’s involvement. En banc review, after all, is the very way by which

a circuit clarifies its caselaw. See Fed. R. App. P. 35(a). In any event, Hill overstates

the extent of any departure. The en banc Sixth Circuit, for example, detailed why its

rejection of Hill’s position was consistent with its earlier decisions like In re Jones,

652 F.3d 603, and In re Wogenstahl, 902 F.3d 621. See Pet. App. 22a–23a.

At bottom, Hill fails to identify another circuit that would exempt his second

petition from AEDPA’s “second or successive” requirements. Hill’s petition, therefore,

does not present any direct conflict among the circuits that is worthy of this Court’s

attention. Contra Pet. 23.

Three further points round out the above discussion.

First¸ Hill’s petition spends considerable space arguing about the “factual predicate” of his claim. Pet. 16–19. In his view, the factual predicate of his claim was the

multi-year development in professional standards surrounding bitemark evidence.

See id. The en banc Sixth Circuit, on the other hand, viewed the “factual predicate[]”

of Hill’s claim as the introduction of “bitemark testimony” at trial. Pet. App. 24a.

Any debate about the term “factual predicate” is a distraction. The reason being that pinning down the precise “factual predicate” of Hill’s claim is not central to

a ripeness analysis under Panetti. For context, “factual predicate” is a statutory term

that AEDPA uses to describe when habeas petitioners must bring their claims. See

§2244(b)(2)(B)(i), (d)(1)(D). Analysis under Panetti focuses on a different inquiry—

ripeness—that is independent of AEDPA’s statutory text. And ripeness is about

whether a claim exists and is capable of adjudication, not whether a claim is persuasive or supported. See Trump v. New York, 141 S. Ct. at 535. In other words, and

contrary to Hill’s suggestions, a ripeness inquiry does not focus on whether a

petitioner has enough facts to make out a “colorable” claim. See Pet. 17. Regardless,

because Hill argues that his second petition is exempt from AEDPA’s requirements,

this case is a poor vehicle for clarifying what the term “factual predicate” means for

purposes of AEDPA.

Second, recasting Hill’s due-process claim as a claim about how state courts

adjudicated Hill’s new-trial motion goes nowhere. Recall that, at times during proceedings below, Hill argued that the state trial court violated his due-process rights

by failing to “sufficiently evaluate” his new-trial motion decades after his convictions.

Pet. App. 21a. The en banc Sixth Circuit did not “focus” on that version of Hill’s claim.

Id. Nor does Hill’s current petition for certiorari. For good reason. Insofar as Hill

seeks further consideration of his new-trial motion (as opposed to relief from his criminal judgment) he is not seeking habeas relief. “Habeas corpus proceedings are available only for claims that a person ‘is in custody in violation of the Constitution or laws

or treaties of the United States.’” Dickerson v. United States, 530 U.S. 428, 439 n.3

(2000) (quoting 28 U.S.C. §2254(a)). State prisoners cannot use habeas petitions to

seek additional processes—like reconsiderations of new-trial motions—that might,

but might not, terminate custody. See Skinner v. Switzer, 562 U.S. 521, 534 (2011).

Hill is in no sense in custody as a direct result of an Ohio court denying his request

for a new trial. And that matters here because the “phrase ‘second or successive’

applies to an application as a whole,” not to discrete claims. Magwood, 561 U.S. at

334–35 & n.10. So if this reframed version of Hill’s application is not seeking habeas

relief at all, the Court can disregard that version in considering whether Hill’s habeas

petition, “as a whole,” is second or successive. Id.

Third, as a matter of first principles, determining which habeas petitions are

second or successive “should be simple.” Panetti, 551 U.S. at 963 (Thomas, J., dissenting). An ordinary English speaker would read the phrase “second or successive

habeas corpus application” as referring to “any subsequent federal habeas application

challenging a state-court judgment that had been previously challenged in a federal

habeas application.” Id. at 964. True, this Court’s decision in Panetti reads the

phrase differently. But, should the Court accept this case, the Warden preserves the

argument that this Court should revisit, or strictly cabin, Panetti. If this case presents a noteworthy question, it is only because Panetti is too easy to manipulate.

II.

The Court should not further delay an end to these already-delayed

federal habeas proceedings.

Even if the Court wishes to clarify the boundaries of Panetti—and thinks that

the question presented might be a possible way to do so—it should still deny certiorari. The unduly prolonged history of this case, and the meritless nature of the dueprocess claim Hill wishes to pursue, make this an especially poor vehicle for review.

“Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional

rights.” Harrington v. Richter, 562 U.S. 86, 103 (2011) (quotations omitted). “It disturbs the State’s significant interest in repose for concluded litigation, denies society

the right to punish some admitted offenders, and intrudes on state sovereignty to a

degree matched by few exercises of federal judicial authority.”

Id. (quotations

omitted). This Court has thus cautioned that federal courts should “never needlessly

prolong a habeas case.” Twyford, 596 U.S. at 820 (quotations omitted).

The Court should heed that caution here. Hill has been seeking habeas relief

since 1996. And federal proceedings have already been delayed for years because of

mistakes in the lower courts. See Hill, 139 S. Ct. 504; Hill, 11 F.4th 373; Pet. App.

12a–42a. Under these circumstances, this Court’s review would only serve to stretch

out federal proceedings that should have ended long ago.

Avoiding further delay is all the more justified because the underlying claim

in Hill’s second petition is dubious. To review, Hill’s core argument relies heavily on

hindsight reasoning: he says that the use of bitemark evidence “rendered his trial

fundamentally unfair in violation of” the Fourteenth Amendment’s Due Process

Clause, because professional standards changed decades later. See Pet. 10. Such

reasoning is suspect on its face, but AEDPA provides even more reason for skepticism.

The state courts rejected Hill’s claim that his trial was “fundamentally unfair,” see

State v. Hill, 125 N.E.3d 158, 161 (Ohio Ct. App. 2018) (Grendell, J., op.), so their

decisions would receive considerable deference under AEDPA, see §2254(d). And

Hill’s second petition fails to identify any decision from this Court that clearly establishes that state courts must engage in the type of hindsight evidentiary analysis

Hill’s argument envisions. See Pet. App. 1157a–58a; cf. also DA’s Office v. Osborne,

557 U.S. 52, 55–56 (2009) (refusing to “constitutionalize” a “right of access” to DNA

testing under the Due Process Clause).

To make matters worse for Hill, the bitemark evidence he challenges was not

necessary to his convictions. Ample evidence unrelated to bitemarks showed that

Hill kidnapped, raped, and murdered Raymond Fife. See Hill, 125 N.E.3d at 169–73

(Grendell, J., op.); State v. Hill, 64 Ohio St. 3d 313, 313–15 (1992). For example, Hill

confessed to being present during this brutal crime. Hill, 64 Ohio St. 3d at 315. A

witness also saw Hill near the crime scene carrying a stick that was later linked to

Raymond’s torture. Id. at 313, 316, 324. Another witness heard a child screaming

while the other perpetrator (Combs) was away from the crime scene. Id. at 313. And

Hill’s status as a serial rapist sheds further light on his motive. See id. at 320–21.

Beyond all that, the changes to bitemark standards that Hill emphasizes do

not even fit the facts of his case. Hill stresses changes to professional guidelines

governing when odontologists may identify an individual “biter” in “open population”

cases. Pet. App. 1246a. But Hill’s case was not an open-population case. Rather,

compelling evidence narrowed the field to only two plausible perpetrators: Hill and

Combs. Further, the 2016 standards Hill relies upon permit odontologists to exclude

a person as having made a bitemark. Pet. App. 1246a. That proves notable here

because during Hill’s trial the State’s expert excluded Combs. Pet. App. 90a. Thus,

even viewing Hill’s trial through the lens of updated standards, compelling bitemark

evidence incriminated Hill.

All said, Hill was undoubtedly an active participant in the unimaginable murder of a twelve-year-old child. The Court should deny certiorari and thereby avoid

any further disruption to the finality of Hill’s convictions and sentence. The Court

should not allow Hill’s habeas proceedings to keep going merely to decide whether

Hill might be able to pursue a patently meritless claim.

CONCLUSION

This Court should deny Hill’s petition for a writ of certiorari.

Respectfully submitted,

DAVE YOST

Attorney General of Ohio

/s/ Michael J. Hendershot

MICHAEL J. HENDERSHOT*

Chief Deputy Solicitor General

*Counsel of Record

ZACHERY P. KELLER

Deputy Solicitor General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

michael.hendershot@ohioago.gov

Counsel for Respondent

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.