KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, an inmate at the Madison Correctional Institution, has filed a petition and an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the assistance of counsel. (Docs. 1, 25). Petitioner challenges his 2008 aggravated robbery and kidnapping convictions in the Clermont County, Ohio Court of Common Pleas. This matter is now before the Court on respondent's motion to transfer the petition to the United States Court of Appeals for the Sixth Circuit because it is a successive petition within the meaning of 28 U.S.C. § 2244(b), which this Court lacks jurisdiction to consider without prior circuit court authorization. (Doc. 29).
The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:
(Doc. 5, Ex. 1 at PageID 68).
On September 21, 2007, the Clermont County, Ohio grand jury returned a two-count indictment charging petitioner with aggravated robbery and kidnapping. (Doc. 5, Ex. 3). On December 7, 2007, petitioner's first trial ended in a hung jury. (Doc. 5, Ex. 5). After a second jury trial ending on April 10, 2008, petitioner was found guilty of all charges in the indictment. (Doc. 5, Ex. 6). Prior to sentencing, petitioner filed a motion for a new trial, based on newly discovered evidence,
Petitioner, through new counsel, filed a timely direct appeal on October 6, 2008, which was affirmed in part and reversed in part by the Ohio Court of Appeals on July 27, 2009. (Doc. 5, Ex. 17, 21).
Meanwhile, while awaiting re-sentencing, petitioner filed a pro se motion to reopen his direct appeal. (Doc. 5, Ex. 28). Petitioner asserted that his attorneys were ineffective for failure to challenge a defective indictment and to argue that petitioner was innocent of the crimes for which he was convicted. Specifically, petitioner argued that video surveillance demonstrated that he could not have committed the offenses:
(Id. at PageID 1011). On November 12, 2009, the Ohio Court of Appeals denied petitioner's motion, finding that his claims regarding evidence establishing his innocence were barred by res judicata because appellate counsel argued the manifest weight of the evidence on direct appeal and the defective indictment claim was without merit. (Doc. 5, Ex. 30). Petitioner unsuccessfully sought review in the Ohio Supreme Court. (Doc. 5, Ex. 33, 34).
On July 22, 2010, petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in Thornton v. Warden, Case No. 1:10-cv-497 (S.D. Ohio July 22, 2010) (Barrett, J.; Merz, M.J.). (Doc. 5, Ex. 35). In his 2010 petition, as in the instant case, petitioner challenged his 2008 Clermont County aggravated robbery and kidnapping convictions. Petitioner raised the following six grounds for relief:
(Id. at PageID 1062-68). By motion to amend, petitioner clarified that Ground Six of the petition was based on counsel's failure to raise on appeal that the evidence presented by the state was insufficient to establish petitioner's identity and that the indictment was defective for failure to include a mens rea element. (See Doc. 5, Ex. 38 at PageID 1124-25).
On August 26, 2011, Magistrate Judge Merz issued a Report and Recommendation, recommending that the petition be dismissed with prejudice and that a certificate of appealability be denied. (Doc. 5, Ex. 42). Specifically, Judge Merz concluded that Ground One was without merit, Grounds Two, Four, and Six were procedurally defaulted, and Ground Three was not cognizable on federal habeas corpus. With respect to Ground Five — that his trial attorney and appellate attorney did not raise the identification issue — Judge Merz noted that petitioner did not explain what he meant by the "identification issue." Judge Merz concluded that to the extent that petitioner claimed there was insufficient evidence to identify him as the offender, this claim was completely addressed in Ground Two of the petition. Otherwise, the ground for relief was procedurally defaulted for failure to raise the claim at any point in the state court proceedings. The Court adopted the Report and Recommendation by Order dated September 27, 2011 and denied petitioner a certificate of appealability. (Doc. 5, Ex. 43).
It appears from the District Court's docket records that petitioner did not pursue an appeal from the District Court's final judgment entry to the Sixth Circuit.
On May 23, 2012, petitioner, through new counsel at the Ohio Innocence Project, filed a motion for leave to file a motion for a new trial and petition for post-conviction relief in the Ohio trial court pursuant to Ohio Rule of Criminal Procedure 33 and Ohio Rev. Code § 2953.21. (Doc. 5, Ex. 45, 46). In the motion for a new trial, petitioner argued that newly acquired evidence demonstrated his innocence. Specifically, the zip ties used in the robbery were tested for DNA and although one male profile was found on both zip ties, the profile did not match petitioner's DNA. Petitioner additionally presented a photogrammetrist's evaluation of the surveillance photos, which concluded that the perpetrator in the photo was 5'11" tall. (See id. at PageID 1175-76, 1185-87). The Ohio Court of Appeals provided the following summary of the new evidence:
(Doc. 5, Ex. 55 at PageID 1352-53).
On August 27, 2012, the trial court denied petitioner's motion. (Doc. 5, Ex. 49). The court first determined that a new trial was not warranted pursuant to Ohio Criminal Rule 33,
On September 5, 2012, petitioner, through new counsel also with the Ohio Innocence Project, filed a timely appeal of the trial court's denial of his motion for leave to file a motion for a new trial and petition for post-conviction relief. (Doc. 5, Ex. 50). Petitioner raised the following two assignments of error on appeal:
(Doc. 5, Ex. 52 at PageID 1300). On June 10, 2013, the appeals court affirmed the judgment of the trial court. (Doc. 5, Ex. 55). In addition to agreeing with the trial court that petitioner did not demonstrate that he was unavoidably prevented from discovery of the new evidence prior to his trial, the appeals court found that petitioner failed to show by clear and convincing evidence that, but for the constitutional error of ineffective assistance of trial counsel, no reasonable factfinder would have found him guilty. The appeals court reasoned as follows:
(Doc. 5, Ex. 55 at PageID 1356-59).
On July 24, 2013, petitioner, through counsel, filed a timely notice of appeal to the Ohio Supreme Court. (Doc. 5, Ex. 57). In his jurisdictional memorandum, petitioner presented the following three assignments of error:
(Doc. 5, Ex. 59). On November 6, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Doc. 5, Ex. 61). Petitioner filed a timely motion for reconsideration, which was denied on January 22, 2014. (Doc. 5, Ex. 62, 64).
Petitioner, again through counsel, filed a second petition for post-conviction relief in the Ohio Court of Common Pleas on June 13, 2014. (Doc. 28, Ex. 1). Petitioner argued that the evidence submitted to the trial court demonstrated that he is actually innocent of the crimes of which he was convicted. On September 19, 2014, the court denied the petition, finding that petitioner's actual innocence claim was not itself a substantive ground for post-conviction relief and that petitioner failed to meet the requirements under Ohio Rev. Code §§ 2953.21 or 2953.23 for filing an untimely or successive petition for post-conviction relief. (Doc. 28, Ex. 5 at PageID 1771).
Petitioner unsuccessfully sought review in the Ohio Court of Appeals (Doc. 28, Ex. 6, 13) and in the Ohio Supreme Court. (Doc. 28, Ex. 14, 15, 17). The Ohio Supreme Court declined to accept jurisdiction of petitioner's appeal on December 2, 2015. (See Doc. 28, Ex. 17).
Meanwhile, on July 8, 2014, petitioner, through counsel, filed the instant habeas corpus petition. (Doc. 1). After respondent filed a return of writ (Doc. 6), to which petitioner replied (Doc. 13), petitioner filed a motion to hold the petition in abeyance pending exhaustion of state court remedies. (Doc. 14). At the time of filing, petitioner's appeal from the trial court's denial of his second post-conviction petition was pending in the Ohio appeals court. On July 21, 2015, the Court issued an Order adopting the undersigned's Report and Recommendation to hold the petition in abeyance pending exhaustion in the state courts. (Doc. 21).
This case was reopened on December 30, 2015. (Doc. 24). In his amended petition, petitioner raises two grounds for relief. In Ground One, petitioner claims that trial counsel was ineffective for failure to investigate the available, scientific evidence applicable to petitioner's trial. According to petitioner, counsel's failure to pursue DNA testing or photogrammetry analysis prejudiced him to the point that he was deprived of a fair trial. In the second ground for relief, petitioner asserts an actual innocence claim.
Respondent has now moved this Court to transfer the petition to the United States Court of Appeals for the Sixth Circuit as a successive petition within the meaning of 28 U.S.C. § 2244(b). (Doc. 29). Petitioner opposes the motion, arguing that the petition is not successive and therefore the motion should be denied. (Doc. 34).
Pursuant to 28 U.S.C. § 2244(b)(1), the federal district court must dismiss a claim presented in a second or successive habeas corpus petition that was raised in a prior petition. In addition, the court must dismiss a claim presented in a second or successive petition, which the petitioner did not include in the prior petition, unless: (1)(a) petitioner shows the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court, that was previously unavailable; or (b) the factual basis for the claim could not have been discovered previously through the exercise of due diligence; and (2) the facts would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2).
Before the district court may consider a successive petition, the petitioner must first request and obtain authorization for such consideration from the court of appeals. 28 U.S.C. § 2244(b)(3). The court of appeals may authorize the district court to consider a successive petition only if petitioner makes the prima facie showing described above. Id. See Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); In re Cook, 215 F.3d 606, 607 (6th Cir. 2000). The subsequent petition must relate to the same conviction or sentence under attack in the prior petition to be "successive" within the meaning of the statute. See In re Page, 179 F.3d 1024, 1025 (7th Cir. 1999) (and cases cited therein). However, not all subsequent petitions relating to the same conviction or sentence are considered successive. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Otherwise, "a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 645.
Courts have held that a later petition is not successive where the first petition was dismissed as premature, see id.; the first petition was dismissed without prejudice for failure to exhaust state court remedies, see Slack v. McDaniel, 529 U.S. 473, 485-86 (2000); Carlson v. Pitcher, 137 F.3d 416 (6th Cir. 1998); the second petition was filed after a remedial appeal ordered in response to the prior petition, see Storey v. Vasbinder, 657 F.3d 372, 377-78 (6th Cir. 2011); or the first petition was dismissed because petitioner failed to either pay the filing fee or provide proper support for his application for pauper status, see Stewart, 523 U.S. at 645 (citing Marsh v. United States Dist. Court for the N. Dist. of California, No. C-94-0581-VRW, 1995 WL 23942 (N.D. Cal. Jan. 9, 1995)). In all of those contexts, the district court had jurisdiction to consider the subsequent petitions without first obtaining authorization from the court of appeals, because the prior dispositions were not "on the merits." See Slack, 529 U.S. at 485-86; Carlson, 137 F.3d at 419; Camarano v. Irvin, 98 F.3d 44, 46-47 (2nd Cir. 1996); cf. Storey, 657 F.3d at 377-78 (where initial petition involved disposition of only one constitutional claim — i.e., whether the petitioner was entitled to a new direct appeal).
In contrast, when a prior petition is dismissed because the petitioner procedurally defaulted his claims in state court, the dismissal qualifies as a decision "on the merits." In such a case, the prisoner must obtain authorization from the court of appeals pursuant to § 2244(b)(3) before filing a subsequent federal habeas application. In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Carter v. United States, 150 F.3d 202, 205-06 (2nd Cir. 1998). Similarly, when the prior petition is dismissed on the ground that it is barred by the statute of limitations, the dismissal is an adjudication of the merits of the claims, and petitioner must obtain prior authorization from the court of appeals entitling him to file a subsequent petition for habeas corpus relief. See, e.g., McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003); Staffney v. Booker, No. 2:09cv14553, 2009 WL 4506425, at *1 (E.D. Mich. Nov. 25, 2009) (transferring the petition to the Sixth Circuit as a successive petition).
The Supreme Court has held that a habeas corpus petition is not successive and § 2244(b) does not apply when it is the first application challenging a new judgment, such as a new sentence imposed on resentencing, that occurs between habeas proceedings. See Magwood v. Patterson, 561 U.S. 320, 331-39 (2010). Although the Magwood Court expressly declined to address whether the petitioner is allowed to challenge "not only his resulting, new sentence, but also his original, undisturbed conviction" in the subsequent application, see id. at 342 (emphasis in original), the Sixth Circuit has recently held that "a new judgment" entered following an intervening proceeding, such as resentencing, "permits the inmate to challenge the original conviction," as well as the intervening new judgment, "without clearing the second-or-successive hurdles." King v. Morgan, 807 F.3d 154, 159 (6th Cir. 2015), reversing, No. 1:12cv2000, 2013 WL 5531365 (N.D. Ohio Sept. 26, 2013); see also In re Stansell, 828 F.3d 412, 416 (6th Cir. 2016).
In this case, petitioner is attacking the same conviction and sentence that he challenged in his prior habeas corpus petition and has remained in effect since petitioner was resentenced on September 11, 2009. It is also clear that no "new judgment" has been entered by the state courts in any intervening proceeding that has occurred after the adjudication of petitioner's prior habeas petition. Therefore, this case does not involve any intervening judgment that falls within the exception recognized in King, In re Stansell, and Magwood for bypassing the requirements governing second or successive petitions that is set forth in 28 U.S.C. § 2244(b).
To the extent that petitioner raises any of the same claims as in his prior petition, these claims must be dismissed.
Petitioner contends that he could not have raised his claims in his prior petition because they were not ripe. According to petitioner, he could not have discovered the factual predicate for his claims prior to the release of the photogrammetry analysis and the results of the DNA test. (Doc. 13 at PageID 1521; Doc. 34 at PageID 1893). Petitioner relies on the Supreme Court's decision in Panetti v. Quarterman, 551 U.S. 930 (2007) in support of his argument that his claims were not ripe and, therefore, the petition is not successive. Id.
In Panetti, the Supreme Court held that an incompetency-to-be-executed claim under Ford v. Wainwright, 477 U.S. 399 (1986), raised in a second-in-time federal habeas corpus petition was not successive under § 2244(b). The Panetti Court noted that Ford-based incompetency claims are generally not ripe until after the time has run to file a first federal habeas petition — that is, not until the time of the petitioner's scheduled execution. Id. at 943. Based on the "unusual posture" of the Ford claim, the Court held that the statutory bar on successive applications for federal habeas corpus did not apply and the district court had jurisdiction to adjudicate the claim. Id. at 945.
However, unlike the Ford claim in Panetti, petitioner's ineffective assistance of counsel and actual innocence claims were ripe prior to filing his first habeas petition. In Thompkins v. Secretary, Dept. of Corrections, 557 F.3d 1257 (11th Cir. 2009), for example, the petitioner similarly tried to extend Panetti beyond the context of a Ford incompetency claim. Noting that the petitioner's claims "are claims that can be and routinely are raised in initial habeas petitions" and such violations "occur, if at all, at trial or sentencing and are ripe for inclusion in a first petition," the Eleventh Circuit declined to extend Panetti to his claims:
Id. at 1260-61 (emphasis added). Similarly, in Florez-Ramirez v. Foster, 811 F.3d 861 (7th Cir. 2016), the Seventh Circuit advised that "when discerning whether a second-in-time petition is successive, courts must be 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); only the former class of petitions escapes classification as `second or successive.'" Id. at 865 (quoting U.S. v. Obeid, 707 F.3d 898, 902 (7th Cir. 2013)). See also Gage v. Chappell, 793 F.3d 1159 (9th Cir. 2015) (noting that the court has distinguished "between petitions containing claims, the factual predicate of which came into being after the first habeas petition — such as the mental incompetency claim in Panetti — and those containing claims that were ripe at the conclusion of a first habeas proceeding but were not discovered until afterward") (internal quotation marks and citations omitted); Jeremiah v. Terry, 322 F. App'x 842, 845 (11th Cir. 2009) (rejecting the argument that a claim of actual innocence was not ripe at the time of the petitioner's first § 2254 petition because the petitioner had not obtained the new evidence demonstrating his actual innocence until after the filing of the petition because the factual predicate for the actual innocence claim existed at the time of the filing of the first habeas petition). In the instant case, the facts underlying petitioner's ineffective assistance of counsel claim and actual innocence claim existed and were discoverable at the time petitioner filed his first habeas petition. Because the questions of whether trial counsel was ineffective for failing to investigate scientific evidence in petitioner's case, as well as whether petitioner is actually innocent of the charges, were ripe at the time of trial and when petitioner filed his first habeas petition, these claims do not fall within the Panetti exception.
Petitioner has otherwise failed to demonstrate that the factual basis for his claims could not have been discovered previously through the exercise of due diligence. As noted by the Ohio courts, the surveillance footage and zip ties were available for testing prior to the commencement of his first trial in 2007, more than two years before petitioner filed his first petition. Furthermore, although petitioner argues that Ohio Bureau of Criminal Investigation and Identification did not perform Y-STR testing at the time of petitioner's trial, petitioner does not dispute the state court finding that the DNA test was commonly utilized by private laboratories at that time. (See Doc. 5, Ex. 55 at PageID 1357 ("Thornton acknowledges that private laboratories, including DNA Diagnostics Center, were performing Y-STR DNA testing as early as 2005 and certainly in 2007 and 2008 when Thornton's trials were held.")) Petitioner has also made no showing that the photogrammetry test was unavailable at the time of his trial.
Petitioner contends that he was indigent at the time of trial and relied on the services of court-appointed counsel. On this basis, petitioner argues that he could not obtain the new evidence prior to trial or within Ohio's timeframe for filing new trial motions or postconviction petitions. (See Doc. 34 at PageID 1893-94). However, the question before this Court is whether petitioner could have discovered the new evidence through the exercise of due diligence prior to filing his first habeas corpus petition in 2010. Although trial counsel did not solicit an expert in photogrammetry analysis or test the zip ties for DNA, counsel's failure to do so does not mean that petitioner could not have discovered the evidence through the exercise of due diligence prior to filing his first habeas corpus petition. See In re Boshears, 110 F.3d 1538, 1540 (4th Cir. 2007) ("An application that merely alleges that the applicant did not actually know the facts underlying his or her claim does not pass [§ 2244(b)(2)(B)(ii)]. Criminal defendants are presumed to have conducted a reasonable investigation of all facts surrounding their prosecution.") (citing McCleskey v. Zant, 499 U.S. 467, 498 (1991) (recognizing "the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition")). Petitioner does not explain, for example, why he waited several years after his trial
Accordingly, the undersigned concludes that petitioner's petition for a writ of habeas corpus is "successive" within the meaning of § 2244(b) because petitioner's prior habeas petition was adjudicated on the merits and petitioner is not contesting any "new judgment" in this proceeding. Moreover, as to petitioner's new claims for relief in the instant petition, the claims are successive under 28 U.S.C. § 2244(b)(2) because petitioner has not shown they rely on a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court, that was previously unavailable, or that the factual basis for the claims could not have been discovered previously through the exercise of due diligence.
In sum, because the instant habeas corpus petition is successive within the meaning of 28 U.S.C. § 2244(b), this Court lacks jurisdiction to consider it in the absence of prior authorization by the Sixth Circuit. When a prisoner has filed a successive petition for habeas corpus relief in the district court without first obtaining authorization from the Court of Appeals, the district court in the interest of justice pursuant to 28 U.S.C. § 1631 is required to transfer the case to the Sixth Circuit for consideration as required under § 2244(b)(3). See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (citing Liriano v. United States, 95 F.3d 119, 122 (2nd Cir. 1996)); see also Withers v. Warden, Chillicothe Corr. Inst., No. 2:15cv129, 2015 WL 965674, at *2-3 (S.D. Ohio Mar. 4, 2015) (Kemp, M.J.), adopted, 2015 WL 1212556 (S.D. Ohio Mar. 16, 2015) (Economus, J.). Therefore, respondent's motion to transfer the instant petition to the Sixth Circuit for review and determination whether the district court should be granted authorization to entertain it (Doc. 29) should be
Because this Court lacks jurisdiction in this matter involving a successive habeas petition within the meaning of 28 U.S.C. § 2244(b), respondent's motion to transfer the petition to the United States Court of Appeals for the Sixth Circuit (Doc. 29) be
Pursuant to Fed. R. Civ. P. 72(b),
The Court also rejected petitioner's claim that he had established that he was actually innocent under § 2953.23(A)(2), which applies where the petitioner was convicted of a felony and based on DNA testing the petitioner establishes, by clear and convicting evidence, that he or she is actually innocent of the offense. See Ohio Rev. Code § 2953.23(A)(2); (Doc. 5, Ex. 49 at PageID 1252-54).
