In Re Byrd, 01-3927

• Decision Date: 09 October 2001
• Docket Number: No. 01-3927,01-3927
• Citation: 269 F.3d 585
• Parties: (6th Cir. 2001) In re: JOHN W. BYRD, JR. Movant. Filed
• Court: U.S. Court of Appeals — Sixth Circuit

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269 F.3d 585 (6th Cir. 2001) In re: JOHN W. BYRD, JR. Movant. No. 01-3927 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Filed October 9, 2001

ORDER

A majority of the judges in regular active service have voted that the court remand this matter for the development of a factual record sufficient to permit sua sponte consideration of a request for leave to file a second petition for a writ of habeas corpus. The jurisdictional basis for a rehearing sua sponte is Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997); Krimmel v. Hopkins, 56 F.3d 873, 874 (8th Cir. 1995).

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The remand for the development of a factual record is ancillary in nature to the petition for the writ of habeas corpus. A majority of the active judges has decided that a factual basis does not exist sufficient to permit the en banc court to entertain the Petitioner's request for a successive filing. We therefore issue this remand, directed to the Chief Judge of the Southern District of Ohio for appointment of a Magistrate Judge to promptly conduct an appropriate factual hearing.

The hearing should develop a record with regard to John Byrd's claim of innocence presented to the Ohio courts but on which no testimony of witnesses or evidence was taken. We direct that the scope of the factual inquiry conducted by the Magistrate Judge shall include testimony relating to matters set forth in the affidavits of John Brewer, Dan Cahill, Darryl Messer, Roger Hall and Benny Fields.

In addition, the factual inquiry shall include, but is not limited to, an examination of the following:

1. Documents prepared by the Hamilton County Prosecutor's Office and/or Hamilton County Sheriff's Department authorizing, directing or identifying Ronald Armstead, Virgil Jordan, Marvin Randolph and Robert Jones to be questioned in matters relating to the issue of innocence raised in this matter.

2. Documents prepared or received by the Hamilton County Prosecutor's office or Hamilton County Sheriff's Department or Cincinnati Police Department relating to Ronald Armstead's incarceration, testimony and parole revocation hearing and disposition.

3. Documents or reports received by the Attorney General's office or Hamilton County Prosecutor's office from the Ohio Department of Corrections or its institutions, relating to this matter.

We further direct that this matter proceed on an expedited basis with the Magistrate Judge submitting a report with factual findings and recommendations to the en banc court within 45 days from date of the appointment of the Magistrate Judge.

IT IS ORDERED that the matter be, and it hereby is remanded. The Magistrate Judge shall report factual findings to this court, which retains jurisdiction in the matter.

IT IS FURTHER ORDERED that the stay of execution currently in place remain in force, pending further order of this court.

JONES, Circuit Judge, concurring in the Order of Remand, in which COLE and CLAY, Circuit Judges, join.

The most gentle characterization I can offer of the dissents of Judge Boggs and Judge Suhrheinrich is that they constitute a fanciful exegesis that bears little relationship to the facts of this case or the requirements of the law. Each dissenter accuses the en banc majority of "lawless" actions or of acting without a lawful basis. Accordingly, even though I am not a member of the en banc court, as is true of Judge Suhrheinrich, with no vote on the issue at hand, as is also true of Judge Suhrheinrich, I am nevertheless compelled to write this response to correct statements and impressions conveyed by the dissents.

A reference to a statement in Judge Suhrheinrich's dissent illustrates the point. It states: "To date, Judge Jones has not written a dissent that sets forth his legal reasoning." Byrd v. Collins, 269 F.3d 585, order of remand, at *1 (6th Cir. 2001) (Suhrheinrich, J. dissenting). Such

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a charge is intended to convey the impression that the en banc court, in reacting to my dissent, did so without the benefit of a written opinion. In fact, I circulated to the full en banc court a twenty-six page dissenting opinion, that set forth, in a comprehensive manner, the legal justification for the action the en banc court decided to take. I should note that part of the opinion included a lengthy discussion of the jurisdictional basis for the court's actions. In light of the dissents, I reiterate the portion of my dissent that relates to the jurisdiction of the court to remand this case in order to develop a factual record, a record the state courts refused to make.

Notwithstanding the obfuscation and manipulation of the issues by the dissenters, what compelled the en banc court to issue the Order of Remand is simple. When a habeas petitioner wishes to file in the district court a second or successive habeas petition, AEDPA requires that he first obtain authorization from the federal court of appeals.¹ Congress, therefore, vests in the appeals court a statutory duty to determine whether to authorize a second bite at the habeas apple. The statute then lays out various requirements the petitioner must satisfy before the court can certify the second or successive petition.² If the petitioner is unable to satisfy the statutory requirements of the AEDPA, the court of appeals may yet authorize a second or successive filing if the court deems that this is necessary to prevent a miscarriage of justice.³ There is no disagreement on the court that Petitioner Byrd does not satisfy the statutory filing requirements of the AEDPA. However, a majority of judges in active service have agreed that the court is without an adequate factual record to determine whether a second filing is warranted under the miscarriage of justice exception. Therefore, a majority of the en banc court has remanded the case for a hearing on the evidence supporting Byrd's claim that he is entitled to file a second petition under the statutory exception.

Byrd has presented to this court the confession of an accomplice, John Brewer, that it was Brewer, not Byrd, who murdered Monte Tewksbury. The Order of Remand was compelled by the fact that a majority of active judges, comparing the

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statements in the confession to supporting facts in the record, agree that this evidence of actual innocence potentially satisfies the miscarriage of justice exception and likely warrants a second habeas action. The impediment to the court so ruling was the fact that the Ohio courts have repeatedly refused every request for discovery and an evidentiary hearing on the Brewer confession.⁴ Obviously, the lack of a factual record on such potentially exculpatory evidence was no impediment for the panel majority. The panel, over my dissent, wrongly refused Byrd's request for authorization to file a second habeas petition, turning a blind eye to serious gaps in the record. The centerpiece of the dissents to the Order of Remand is the argument that the en banc court was powerless to order a rehearing to correct the panel's erroneous decision.

The view that the en banc court lacked jurisdiction to consider the panel majority's adverse decision reads into the AEDPA a meaning the plain text of the statute does not support. The statute prohibits an authorization decision from being "the subject of a petition for rehearing." 28 U.S.C. 2244(b)(3)(E). This court, in In re King, 190 F.3d 479 (6th Cir. 1999) extended the reach of the statute to preclude not only petitions for rehearing but also petitions for rehearing en banc.⁵ Nevertheless, AEDPA did not alter the authority of the en banc court to order a rehearing on its own motion. In Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), the Second Circuit observed that the federal courts of appeals retain the power to order a rehearing sua sponte.

"Notwithstanding the restrictions on appealability in 2244(b)(3)(E), this court has the authority to order a rehearing sua sponte. It is well-established that a court of appeals is entitled both to reconsider a prior decision sua sponte . . . and to order a rehearing sua sponte (citations omitted). By mandating that the initial decision of the court of appeals 'shall not be the subject of a petition for rehearing' (emphasis in original), 2244(b)(3)(E) provides only that a disappointed litigant may not ask the court to reconsider its certification decision. By its plain terms, it does not purport to limit the court's own power to review its decisions or to undertake a rehearing."

Id. at 367. In dissent, Judge Boggs argues that notwithstanding the emphatic language of the court in Triestman, the case is not on point because it involved a sua sponte order of a three-judge panel rather than, as in Byrd's case, the full en

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banc court. Byrd v. Collins, 269 F.3d 585, order of remand, at *3 (6th Cir. 2001) (Boggs, J. dissenting). Remarkable! This fact is hardly a basis on which to distinguish Triestman. Rather, the fact that a majority of active judges agrees that a rehearing is necessary serves only to reinforce the fact that the court acts completely within the law.

The Second Circuit is not alone in this interpretation of the statute. In United States v. Lorentsen, 106 F.3d 278 (1997), the Ninth Circuit adopted the view of the statute articulated in King that AEDPA bars petitions for rehearing en banc. One year later, the Ninth Circuit decided Thompson v. Calderon, 151 F.3d 918 (1998), in which the court followed the Triestman analysis that "the language [of 2244(b)(3)(E)] does not preclude sua sponte review by an en banc court. It merely precludes the parties from seeking a rehearing." Id. at 922. The Ninth Circuit had no difficulty rejecting the flawed analysis advocated in the dissents. Neither did a majority of active judges on this court. Indeed, even the Supreme Court has acknowledged this distinction when interpreting an analogous section of the statute. The Supreme Court in Calderon v. Thompson, 523 U.S. 538...