In re Coley

• Decision Date: 11 September 2017
• Docket Number: Nos. 17-3071/3815.,s. 17-3071/3815.
• Parties: IN RE: Douglas L. COLEY, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

871 F.3d 455

IN RE: Douglas L. COLEY, Movant.

Nos. 17-3071/3815.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 11, 2017

ON MOTION: Joseph E. Wilhelm, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Movant. ON RESPONSE: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Respondent.

Before: MERRITT, SILER, and SUTTON, Circuit Judges.

The court delivered a PER CURIAM order. MERRITT, J. (pp. 458–59), delivered a separate dissenting opinion.

ORDER

In these combined appeals, Douglas Coley asks this court to remand his case to the district court or to grant him permission to file a second or successive petition under 28 U.S.C. § 2254. See

871 F.3d 457

28 U.S.C. § 2244(b)(3)(A). In either scenario, Coley hopes to argue that the Supreme Court's recent decision in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), renders Ohio's death-penalty scheme unconstitutional. We DENY both requests.

In 1998, a jury convicted Coley of one count of attempted murder, two counts each of kidnapping and aggravated robbery, and three counts of aggravated murder (with the felony-murder aggravating circumstance attached to each count). He was sentenced to prison and death. After unsuccessfully pursuing several avenues of state-court relief, he filed a federal habeas corpus petition on January 2, 2003. The district court denied the petition in 2010, and we affirmed. Coley v. Bagley , 706 F.3d 741, 746 (6th Cir. 2013).

In 2017, Coley filed a new federal habeas petition. The district court transferred it here for permission to be filed.

Coley cannot satisfy the dictates of § 2244(b). In the petition before us, Coley argues that Ohio's capital-sentencing scheme, which permits the jury to return a general verdict, is unconstitutional in light of Hurst v. Florida . He believes that Hurst announced a new rule requiring juries to make specific findings about mitigating evidence during capital sentencing. But even if we assume that Hurst announced "a new rule of constitutional law," the Supreme Court has not "made [ Hurst ] retroactive to cases on collateral review." See Tyler v. Cain , 533 U.S. 656, 662–63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Whether or not Hurst says what Coley thinks it says, we cannot authorize his petition. See 28 U.S.C. § 2244(b)(3)(C).

Coley's only way around this problem is to argue that his petition falls outside of § 2244's ambit because it is not "second or successive," even though it is second in time. According to Coley, his new petition is "based on Hurst , which was not decided" when he filed his first petition. Therefore, he maintains, the new petition is not abusive, not successive, and not subject to § 2244(b).

It's true that not all second-in-time petitions are "second or successive." Panetti v. Quarterman , 551 U.S. 930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). But this not-second-or-successive exception is generally restricted to two scenarios. The first is where ripeness prevented, or would have prevented, a court from adjudicating the claim in an earlier petition. See Stewart v. Martinez–Villareal , 523 U.S. 637, 645, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (noting that "in [such] situations, the habeas petitioner does not receive an adjudication of his claim"). The second is where a federal court dismissed an earlier petition because it contained exhausted and unexhausted claims and in doing so never passed on the merits. See Slack v. McDaniel , 529 U.S. 473, 485–86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Slack indicated that it would still be an "abuse of the writ" if a petitioner chose to proceed in federal court with his exhausted claims rather than return to state court with the unexhausted ones, but then later chose to file another federal...