514 F.3d 539 (6th Cir. 2008), 06-4120, In re McDonald

Docket Nº:06-4120.
Citation:514 F.3d 539
Party Name:In re Dewitt McDONALD, Jr., Movant.
Case Date:January 10, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 539

514 F.3d 539 (6th Cir. 2008)

In re Dewitt McDONALD, Jr., Movant.

No. 06-4120.

United States Court of Appeals, Sixth Circuit.

January 10, 2008

Argued: Nov. 29, 2007.

Page 540

ARGUED:

Robert T. Smith, Jones Day, New York, New York, for Petitioner.

Jerri L. Fosnaught, Office of the Attorney General, Columbus, Ohio, for Respondent.

Before SILER, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner Dewitt McDonald Jr. moves this court to grant him permission to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b)(3). For the following reasons, we authorize McDonald to file a second habeas corpus petition with the district court.

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I.

On June 27, 1995, the Common Pleas Court of Erie County, Ohio, entered a jury's guilty verdict for McDonald, convicting him of complicity to commit the following offenses: (1) aggravated murder with a firearm specification; (2) murder with a firearm specification; (3) improperly discharging a firearm into a habitation with specifications for harm and a firearm; (4) felonious assault with a firearm specification; (5) attempted aggravated murder with a firearm specification; and (6) felonious assault with a firearm specification. The evidence presented at trial included the testimony of Krista Harris who had initially provided McDonald with an alibi when testifying before a grand jury. At trial, however, Harris recanted her initial grand jury testimony, testifying instead on behalf of the prosecution. Indeed, as summarized by the Court of Appeals of Ohio,

Harris stated that [McDonald] was supposed to meet her in a motel room a few blocks from the shooting scene, but he did not show up until sometime after 3:15 a.m. When he did arrive, according to Harris, he appeared nervous and shaken. Harris also testified that the next morning she overheard a telephone conversation between [McDonald] and Turner in which the shooting was discussed and [McDonald] stated that they "had to get the gun." [McDonald] left and returned with Turner a short time later; Turner was carrying a duffle bag. The trial judge merged the first two counts and sentenced McDonald to life in prison.

State v. McDonald, No. E-95-046, 1997 WL 51221, at *2, 1997 Ohio App. LEXIS 355, at *4 (Ohio Ct. App. February 7, 1997).

On May 28, 1998, after pursuing his claims on direct appeal, McDonald filed a habeas corpus petition with the United States District Court for the Northern District of Ohio, which was denied on May 18, 1999. The district court also denied McDonald a certificate of appealability. On February 1, 2000, McDonald was again denied a certificate of appealability in response to his filing a notice of appeal with the district court.

In yet another reversal of her story, on December 21, 2001, Krista Harris signed an affidavit in which she stated that the prosecutor in McDonald's trial, Kevin Baxter, coerced her into a nonconsensual sexual relationship by threatening false criminal charges. Moreover, Harris stated that Baxter used these threats to coerce her into providing perjured testimony in McDonald's case. These allegations were also corroborated by Edward Jay Baxter, Kevin Baxter's brother, who stated in an affidavit signed on April 23, 2003, that Kevin Baxter "coerced Krista Harris to lie in a drive-by shooting, then forced her into a non consensual relationship."1

After unsuccessfully pursuing multiple avenues for appeal of his conviction in state courts in reliance on this newly discovered evidence, McDonald, pursuant to 28 U.S.C. § 2244(b), now seeks authorization to file a second petition of habeas corpus with the district court. McDonald argues that such a petition should be granted because his conviction was based upon, in part, perjured testimony, constituting a violation of his rights under the Due Process Clause. In addition, McDonald argues that this court should grant him permission to file a second habeas corpus petition because

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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)(B).

II.

The present motion before the court requests authorization to file a second habeas corpus petition in accordance with the requirements of 28 U.S.C. § 2244(b)(3)(A): "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In turn, "The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." 28 U.S.C. § 2244(b)(3)(C). McDonald argues that the claims underlying his requested second habeas corpus petition comply with 28 U.S.C. § 2244(b)(2), which states in relevant part:

(2) A claim presented in a second or successive habeas corpus application under section [28 U.S.C. §] 2254 that was not presented in a prior application shall be dismissed unless --

. . .

(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.

As McDonald notes, in compliance with 28 U.S.C. § 2244(b)(1), his claim has not been presented in a prior application. See 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section [28 U.S.C. §] 2254 that was presented in a prior application shall be dismissed.").2

In opposition to the instant motion, the government argues that McDonald's claim is barred because the factual predicate underlying the proffered constitutional error could have been discovered by McDonald as early as 2001. Thus, the habeas corpus petition that McDonald seeks permission to file would be barred by 28 U.S.C. § 2244(d)(1)(D):

(d)(1) A 1-year period of...

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