Hanna v. Shoop
| Decision Date | 06 September 2019 |
| Docket Number | Case No. 3:19-cv-231 |
| Parties | JAMES GALEN HANNA, Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
This capital habeas corpus case is before the Court on Respondent's Motion to Transfer this case to the Sixth Circuit Court of Appeals for a determination under 28 U.S.C. § 2244(b) of whether Petitioner may proceed in this Court (ECF No. 11). Petitioner opposes the Motion (ECF No. 15) and the Warden has filed a Reply in support (ECF No. 16).
Hanna challenged his conviction and capital sentence in a first-in-time habeas application, Hanna v. Ishee, Case No. 1:03-cv-801, 2009 WL 485487 (S.D. Ohio Feb. 26, 2009) (Rose, J.), denial of habeas corpus relief affirmed, 694 F.3d 596 (6th Cir. 2012), cert. denied, 571 U.S. 844, 134 S. Ct. 101 (Mem) (2013). The instant Petition is plainly Hanna's second-in-time Petition challenging that conviction and sentence. He has not sought circuit court permission to proceed and claimed in the Petition that this was not a second-or-successive petition requiring that permission (ECF No. 1, PageID 45-51). Because Hanna's theory is novel and the Court did not consider it appropriate to decide that question merely on Hanna's argument, it ordered Respondent to reply to that argument, which resulted in the Motion sub judice.
Hanna was convicted of aggravated murder with capital specifications and sentenced to death on November 20, 1998. 2009 WL 485487, at *3. He completed appeals on his first federal habeas Petition in 2013. Thereafter the Supreme Court of Ohio, set an execution date. Most recently on September 1, 2017, that date was reprieved to December 11, 2019. In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016, (consolidated method of execution case under 42 U.S.C. § 1983), Notice of Reprieve, ECF No. 1193-1. Hanna has a preliminary injunction hearing set for September 24-October 3, 2019. He has been a plaintiff in that case since it was filed as a consolidated matter in November 2011. He filed the instant Petition August 5, 2019, through the same Assistant Federal Public Defenders who represent him in that case.
In the instant Petition, Hanna pleads the following grounds for relief:
(ECF No. 1, PageID 18-19.)
Hanna admits that these four claims are procedurally defaulted because they were not presented in Ohio postconviction proceedings under Ohio Revised Code § 2953.21 (Petition, ECF No. 1, PageID 4)1. He claims that default is excused by the ineffective assistance he received from postconviction counsel, relying on Martinez v. Ryan, 566 U.S. 1 (2012)2. The Petition asserts that Hanna was represented in his Ohio postconviction relief proceedings by Ohio Public Defender David Bodiker and two of his assistants, Susan Roche and Kathryn Sandford. Id. at PageID 12. After those proceedings were complete on appeal, Hanna filed for habeas corpus relief in this Court, represented again by Mr. Bodiker and his assistants Stephen Ferrell, Kelly Culshaw, and, from 2004 to 2007, Susan Roche. Id. at PageID 12-13.
The Petition claims it is not second-or-successive because it "does not constitute an 'abuseof the writ,'" (Petition, ECF No. 1, PageID 44, relying on In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006); Askew v. Bradshaw, 646 F. App'x 342, 346 (6th Cir. 2016); Tibbetts v. Warden, 2017 WL 2364383 (S.D. Ohio May 26, 2017) (Dlott, J.). That exception applies, Hanna pleads, because he did not have a full and fair opportunity to litigate these four ineffective assistance of trial counsel claims in his first Petition "because federal habeas counsel at that time labored under a conflict of interest." Id. at PageID 45. Claiming the benefit of Martinez, Hanna asserts the ineffectiveness of his post-conviction counsel in not raising these claims cures or excuses his procedural default in not presenting them in that proceeding. Id. at PageID 46, citing Martinez, 566 U.S. at 4, 14. The conflict of interest which then occurred when the Ohio Public Defender's Office continued the representation on federal habeas is said to violate Ohio Rule of Professional Conduct 1.7. Id. at PageID 47. Other Assistant Ohio Public Defenders who appeared on Hanna's behalf in his first habeas case - Rachel Troutman and Tyson Fleming - are said to have suffered from the same conflict, the "vested interest" in not criticizing other members of one's own firm, risking the "firm's" reputation and their own jobs as subordinates of Mr. Bodiker. Id. at PageID 48-49. Because conflicted counsel could not give Hanna a "full and fair opportunity" to litigate these claims, he asserts the instant Petition must be treated as a first habeas application. Indeed to fail to do so would violate the Due Process, Equal Protection, and Suspension Clauses and 18 U.S.C. § 3599. Id. at PageID 51 n.8.
In his Motion to Transfer, Warden Shoop distinguishes the Bowen, Askew, and Tibbetts cases (ECF No. 11, PageID 688-91). He asserts that the remainder of Hanna's arguments that thisPetition is not second-or-successive should be addressed by the Sixth Circuit. Id. at PageID 691-92).
Hanna's Response reiterates the conflicts-of-interest pleaded in the Petition and repeats his claim that, because of those conflicts, his instant Petition is not an abuse of the writ (ECF No. 15).
The Warden's Reply insists that because the instant Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214) (the "AEDPA"), the abuse of writ doctrine does not apply (ECF No. 16, PageID 714, citing ); In re Jones, No. 19-1456, 2019 U.S. App. LEXIS 25515, at *2 (6th Cir. Aug. 23, 2019); In re Moore, No. 19-1203, 2019 U.S. App. LEXIS 20574, at *2-*3 (6th Cir. Jul. 10, 2019); In re Morris, No. 19-1081, 2019 U.S. App. LEXIS 13603, at *2-*3 (6th Cir. May 6, 2019).
A motion to transfer for a 28 U.S.C. § 2244(b) determination is a non-dispositive pre-trial motion on which a Magistrate Judge has authority to act in the first instance. 28 U.S.C. § 636(b)(1)(A). To protect Petitioner's right to review of this Order by an Article III judge, the effectiveness of the Order will be delayed to allow appeal to Judge Rose.
A federal court's first obligation on the filing of a new case is to assure itself that it has jurisdiction of the subject matter. A district court lacks jurisdiction to consider a second or successive habeas corpus petition without approval by the circuit court under 28 U.S.C. § 2244(b). Burton v. Stewart, 549 U.S. 147 (2007); Franklin v. Jenkins, 839 F.3d 465 (6th Cir. 2016). At the same time, the district court must make the determination in the first instance of whether a habeasapplication is second or successive. In re Smith, 690 F.3d 809 (6th Cir. 2012); In re Sheppard, No. 12-3399, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012).
At common law and in practice under federal habeas corpus statues before 1996, there was no numerical limit on the number of times a prisoner could apply for a writ of habeas corpus. Prisoners serving long sentences often filed repeated habeas corpus petitions raising the same claims or attacking the same conviction on new grounds. To deal with the burden of this litigation, Rule 9(b) of the Rules Governing Section 2254 Cases formerly provided:
A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
While the language of Rule 9(b) would appear to be discretionary, the Supreme Court interpreted the abuse of writ doctrine as follows:
When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes the petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden...
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