Allen v. Mitchell, 120518 FED6, 02-4145

Docket Nº:02-4145
Party Name:DAVID WAYNE ALLEN, Petitioner-Appellant, v. BETTY MITCHELL, Respondent-Appellee.
Judge Panel:Before: SILER, MOORE, and BUSH, Circuit Judges. KAREN NELSON MOORE, Circuit Judge, dissenting.
Case Date:December 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

DAVID WAYNE ALLEN, Petitioner-Appellant,

v.

BETTY MITCHELL, Respondent-Appellee.

No. 02-4145

United States Court of Appeals, Sixth Circuit

December 5, 2018

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Before: SILER, MOORE, and BUSH, Circuit Judges.

ORDER

David Allen, an Ohio prisoner under sentence of death, moves to remand his appeal with leave to amend his original petition for a writ of habeas corpus to include a claim under Brady v. Maryland, 373 U.S. 83 (1963), and a claim of ineffective assistance of counsel. The Brady claim is based on DNA evidence developed in state court after the denial of Allen's habeas petition. Allen has not explained the basis for his proposed ineffective assistance of counsel claim. He has, therefore, forfeited that issue. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).

Allen was convicted of aggravated robbery and aggravated murder with death-penalty specifications in 1991. Chloie English was found stabbed, beaten, and strangled to death in her home. Allen's thumbprint was found on the inside of one of the lenses of English's glasses, cigarette butts consistent with Allen's brand (Dorals) and saliva (type O secretor) were found in English's trash can, and Allen knew English through a prison ministry program. The Ohio Court of Appeals affirmed Allen's convictions and sentence in 1993, State v. Allen, No. 62275, 1993 WL 366976 (Ohio Ct. App. Sept. 9, 1993), and the Ohio Supreme Court affirmed in 1995, State v. Allen, 653 N.E.2d 675 (Ohio 1995). Allen's efforts at post-conviction relief in the Ohio courts were unsuccessful.

Allen filed a petition for a writ of habeas corpus in 1999. The district court denied the petition in 2002, and granted Allen a certificate of appealability as to his claim that a biased juror served on the jury. We denied Allen's motion to expand the certificate of appealability and directed that Allen's appeal proceed on the claim certified by the district court. But in February 2006, Allen's state trial court granted his motion for DNA testing of blood found on his jacket and on gloves found near the victim. Consequently, in April 2006, Allen filed a motion asking us to hold briefing in abeyance pending completion of that DNA analysis. We granted the motion, and, for eleven years, Allen filed periodic status reports advising us of the state-court proceedings.

The state court ordered additional DNA testing in May 2011. Based on the results of the DNA testing, Allen filed a supplemental motion for a new trial and to set aside the death-penalty determination in November 2011. Allen's motion relied on Ohio Rule of Criminal Procedure 33 and on Brady. He alleged that (1) the state failed to disclose blood-stained gloves found at the scene of the murder and (2) the state failed to disclose a police report in which the victim's neighbor said she saw a black male approach the victim's home on January 23 or 24, 1991. (English was last seen alive on January 24 and was found dead on January 25.) The trial court denied the motion without a hearing, and the Ohio Court of Appeals affirmed. State v. Allen, No. 103492, 2016 WL 5630980, at *8 (Ohio Ct. App. Sept. 29, 2016).

The Ohio Court of Appeals summarized the results of the DNA testing of the gloves as follows: (1) due to a low amount of male DNA and a possible mixture, no determination could be made regarding the DNA profile obtained from the exterior of the right glove; (2) a DNA mixture of at least two males was detected in the interior of the right glove, but due to the low amount and possible mixture, no determination could be made as to whether Allen was a contributor; (3) male DNA was not detected on the exterior of the left glove; and (4) the interior of the left glove produced a DNA mixture of at least two males. Allen was excluded as a contributor to the DNA recovered from the interior of the left glove.

Allen, 2016 WL 5630980, at *4. The Ohio Court of Appeals held that Allen had not demonstrated a Brady violation because Allen's trial counsel had the opportunity to learn of the evidence before and during the trial. Id. at *5. The court also held that the trial court did not abuse its discretion when it denied Allen's motion for a new trial because there was not a strong probability that the glove DNA evidence would have changed the result of the trial. Id. at *5. Finally, the Ohio Court of Appeals rejected Allen's argument that other evidence supported his motion for a new trial. Id. at *6.

Allen asks us for authorization to amend the Brady claim in his habeas petition. With only limited exception not applicable here, a second-in-time habeas application that challenges the same state-court judgment as the first habeas application is second or successive. Magwood v. Patterson, 561 U.S. 320, 337 (2010).[1] And, "a motion to amend that seeks to raise habeas claims is a second or successive...

To continue reading

FREE SIGN UP