In re McDonald

Citation514 F.3d 539
Decision Date10 January 2008
Docket NumberNo. 06-4120.,06-4120.
PartiesIn re Dewitt McDONALD, Jr., Movant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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.

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 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)(13).

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 limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from []

...

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Consequently, the government argues that this court should, on these grounds, deny McDonald permission to file a second habeas corpus petition.

The government's arguments, however, do not take the entire text of 28 U.S.C. § 2244(b) into account. Section 2244(b)(3)(C) requires the relevant court of appeals to ensure that the petitioner's request for permission to file a second habeads corpus petition "satisfies the requirements of this subsection." (emphasis added). In contrast, 28 U.S.C. § 2244(b)(4) charges the district court, and not the court of appeals, to "dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." (emphasis added). Thus, investigating compliance with the one-year statute of limitations outlined in 28 U.S.C. § 2244(d)—clearly a separate subsection from 28 U.S.C. § 2244(b)—is not within the purview of the court of appeals' consideration of applications requesting authorization to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b).

Indeed, not only does the text of the statute require this conclusion, but logic counsels that a court of appeals considering a request for authorization to file a second or successive habeas corpus petition would not consider whether or not the habeas corpus petition complies with the one-year statute of limitations. When considering motions pursuant to 28 U.S.C. § 2244(b) for permission to file a second or successive habeas corpus petition, the court does not have a developed record because the new petition has not yet been considered by a district court. As a result, courts of appeal cannot determine' whether the one-year statute of limitations should be equitably tolled, see, e.g., Sauter v. Jones, 395 F.3d 577, 589 (6th Cir.2005) (determining that, based upon the particular facts of the case, the petitioner had presented sufficient evidence of actual innocence to be granted equitable tolling); see also Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (stating that equitable tolling is available when the petitioner can demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way"), or on what date the defendant was able to discover the evidence in question through due diligence. See, e.g., Granger v. Hurt, 90 Fed.Appx. 97, 99-101 (6th Cir. 2004) (finding that, because of the particular facts of the case, the one-year period should begin after the date the information in fact became available); see also 2 Randy Hertz & James. S. Liebman, Federal Habeas Corpus Practice and Procedure, 1447-48 (5th ed. 2005) ("The statute limits the scope of review at this stage to the specific, question whether the motion makes a prima facie showing that any of the claims in the petition satisfy AEDPA's substantive successive petition standards, thereby evidently rendering irrelevant other possible grounds for dismissal such as ultimate lack of merit, nonexhaustion,...

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