In re Hanna

• Decision Date: 11 February 2021
• Docket Number: No. 19-3881,19-3881
• Citation: 987 F.3d 605
• Parties: IN RE: James HANNA, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

987 F.3d 605

IN RE: James HANNA, Movant.

No. 19-3881

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 11, 2021

ORDER

James Hanna, an Ohio death-row prisoner represented by counsel, has filed two motions. He requests leave to file a second or successive 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2244(b)(3)(A). He also moves the Court to remand his pending petition to the district court, arguing that his second-in-time petition is not successive such that his claims must meet the requirements of § 2244(b). We deny both motions.

Hanna was convicted of aggravated murder and sentenced to death. He exhausted direct-appeal and state postconviction remedies, then filed a federal habeas corpus petition, which the district court denied and dismissed with prejudice. Hanna v. Ishee , No. C-1:03-cv-801, 2009 WL 485487 (S.D. Ohio Feb. 26, 2009), aff'd , 694 F.3d 596 (6th Cir. 2012), cert. denied sub nom. Hanna v. Robinson , 571 U.S. 844, 134 S.Ct. 101, 187 L.Ed.2d 74 (2013). We specifically rejected Hanna's claim that he was deprived of effective assistance in mitigation because his counsel failed to present a psychologist to testify as to how organic neurological defects and a troubled childhood, in combination with lifelong incarceration, contributed to the aggravated murder.

Hanna returned to the district court on August 5, 2019 and filed the federal habeas corpus petition now before us. It raises four claims, all alleging that counsel ineffectively assisted Hanna in the penalty phase: (A) counsel failed to present neuroimaging

evidence; (B) counsel failed to present mitigating evidence that Hanna suffered from severe mental illnesses at the time of the offense (post-traumatic stress disorder, major depression, and borderline personality disorder ) caused by severe sexual abuse and complex trauma; (C) counsel failed to present mitigating evidence that Hanna has, and had at the time of the offense, a serious mental disorder caused by brain damage; and (D) counsel's errors, combined, deprived Hanna of effective assistance in the penalty phase and of a fair and reliable sentencing hearing. The magistrate judge concluded that the petition was a successive petition, which may not be filed without this Court's permission. 28 U.S.C. § 2244(b)(3)(A). He ordered the case transferred here for that permission. Hanna appealed, and the district judge overruled Hanna's objections, adopted the magistrate judge's transfer order, and transferred the case. Once here, Hanna filed the two motions aforementioned: the § 2244 motion seeking leave to file a successive petition and the motion to remand the case.

Hanna argues, and the dissent agrees, that § 2244, which governs the finality of federal habeas proceedings, does not apply in this case. Hanna concedes that his proposed petition is the second federal habeas corpus petition he has filed and, thus, second in time, but he argues that it is not "second or successive" in the § 2244 sense. Citing In re Bowen , 436 F.3d 699, 704 (6th Cir. 2006), he argues that "a second-in-time petition is a ‘second or successive’ petition only if it constitutes an ‘abuse of the writ.’ " He contends that his petition does not abuse the writ. According to him, his new claims could not have been raised in his first petition because his previous federal habeas counsel suffered a conflict of interest that prevented their raising the claims—hence § 2244 does not apply, he needs no permission to file, and his proposed petition should be remanded to the district court for treatment as a first petition.

As an initial matter, the abuse-of-the-writ doctrine is no help to Hanna because he raises claims that were presented in the prior petition. The abuse-of-the-writ doctrine "concentrate[s] on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time." McCleskey v. Zant , 499 U.S. 467, 490, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). It is not applicable here because Hanna's claims of ineffective assistance in mitigation relating to his brain damage and history of abuse were raised in the previous petition.

Moreover, the abuse-of-the-writ doctrine is applied in light of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2241 et seq. , the relevant statute. "AEDPA modifies those abuse-of-the-writ principles and creates new statutory rules under § 2244(b)." Magwood v. Patterson , 561 U.S. 320, 337, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). If the petitioner's claims fall within a scenario addressed by § 2244, the petition is successive and must satisfy § 2244(b). See In re Wogenstahl , 902 F.3d 621, 627–28 (6th Cir. 2018) (per curiam).

The current petition is a successive petition and must be dismissed. "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1). This Court previously rejected Hanna's claims that his counsel were ineffective for failing to present certain experts, including a psychologist, who specifically "could have testified that the stresses of lifelong incarceration, compounded with his organic neurological defects and troubled childhood, directly contributed to the attack." Hanna , 694 F.3d at 617. Accordingly, Hanna "seeks to present claims that have already been adjudicated in a previous petition," and "AEDPA denies federal courts the jurisdiction to adjudicate such a petition" under § 2244(b)(1). Post v. Bradshaw , 422 F.3d 419, 425 (6th Cir. 2005).

The dissent concludes that Hanna's current claims are new because brain damage and Hanna's history of sexual abuse were not the focus of his first § 2254 petition or properly presented in the context of his mental illnesses. That Hanna "seeks to supplement with new evidence his claims" that counsel were ineffective at the penalty phase of trial for failing to properly present evidence of his organic brain damage and sexual abuse "would be representing already presented claims."

Moreland v. Robinson , 813 F.3d 315, 325 (6th Cir. 2016) (citing Gonzalez v. Crosby , 545 U.S. 524, 531, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) ). The dissent's reference to Wogenstahl , where the petitioner sought to bring a completely new Brady claim, is therefore distinguishable. See In re West , 402 F. App'x 77, 79 (6th Cir. 2010) (holding that claim that counsel was ineffective "for failing to present additional pieces of evidence that—like the evidence we already considered—painted [the petitioner] as a troubled individual" was not new). Hanna's petition must be dismissed under § 2244(b)(1).

Hanna has also not shown that he meets the requirements for consideration of a second or successive petition under § 2244(b)(2). Hanna does not claim that his new petition relies on a new rule of constitutional law under § 2244(b)(2)(A), but it allegedly depends on a factual predicate—the scenario addressed by § 2244(b)(2)(B). The dissent's contention that Hanna's petition is not based on a new factual predicate is belied by the petition itself, which seeks "an evidentiary hearing to enable James Hanna to prove the facts asserted in this petition and to prove any and all facts required ... to prove his entitlement to relief on the merits ...." Assuming that the "factual predicate" of Hanna's current petition supports new claims and could not have been discovered previously, which is far from clear, all the claims at issue relate to trial counsel's representation in mitigation. 28 U.S.C. § 2244(b)(2)(B)(i). Mitigation evidence categorically does not meet § 2244(b)(2)(B)(ii)'s requirement that the new facts establish a petitioner's actual innocence.¹

Even if Hanna had not previously raised these claims under § 2244(b)(1), and they were not squarely foreclosed by § 2244(b)(2), he has not shown that the abuse-of-the-writ doctrine applies. "[T]his not-second-or-successive exception is generally restricted to two scenarios," neither of which is present here. In re Coley , 871 F.3d 455, 457 (6th Cir. 2017) (per curiam). Those scenarios are when (1) the claim was not ripe when the earlier petition was filed and (2) where the earlier petition was dismissed for failure to exhaust. Id . The habeas statute's limits on second or successive habeas petitions also do not apply to challenges to intervening judgments. Magwood , 561 U.S. at 323–24, 130 S.Ct. 2788. There is no intervening judgment in this case.

Instead, Hanna argues that his petition is not an abuse of the writ because counsel from the same office, the Ohio Public Defender, represented him in both his state postconviction proceedings and initial federal habeas case. He asserts that this continuity of counsel constituted a conflict of interest which prevented him from previously raising the instant claims because it would have required members of the Ohio Public Defender to argue that they and their colleagues had been ineffective in a prior proceeding. Neither Hanna nor the dissent cite any case where we have found that mere continuity of counsel constitutes a conflict of interest entitling a petitioner to file a second or successive petition under the abuse-of-the-writ doctrine.

We also note that the conflict Hanna has attributed to the Ohio Public Defender due to continued representation "is merely hypothetical ...." Moss v. United States , 323 F.3d 445, 464 (6th Cir. 2003). There is no evidence that "a conflict of interest actually affected the adequacy of his representation ...." Cuyler v. Sullivan , 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Hanna has not presented any specific instances where the continuity of counsel "adversely affected his lawyer's performance," but rather merely suggests "the possibility of conflict ...." Id. at 350, 100 S.Ct. 1708. Hanna has also failed to show that he was prejudiced by counsel's failure to raise the claims presented in the new petition. See ...