In re Hill
| Docket Number | 20-3863 |
| Decision Date | 25 August 2023 |
| Parties | In re: Danny Hill, Movant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Argued En Banc: June 14, 2023
On Petition for Rehearing En Banc United States District Court for the Northern District of Ohio at Youngstown. No 4:20-cv-01294-John R. Adams, District Judge.
ARGUED EN BANC:
Sharon A. Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland Ohio, for Movant.
Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL Columbus, Ohio, for Respondent.
ON SUPPLEMENTAL BRIEF:
Sharon A. Hicks, Matthew Gay, Calland M. Ferraro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Movant.
Benjamin M. Flowers, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Respondent.
ON AMICUS BRIEF:
Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Tyler R. Green, Tiffany H. Bates, ANTONIN SCALIA LAW SCHOOL, Arlington, Virginia, for Amici Curiae.
THAPAR, J. (pp. 15-19), delivered a separate concurring opinion in which SUTTON, C.J., and GRIFFIN, KETHLEDGE and READLER, JJ., joined. CLAY, J. (pp. 20-31), delivered a separate dissenting opinion in which MOORE and STRANCH, JJ., joined.
Before: SUTTON, Chief Judge; MOORE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, DAVIS and MATHIS, Circuit Judges. [*]
In 1986, Danny Hill was convicted of murder and sentenced to death in Ohio state court. For 37 years, he's been challenging his conviction and sentence. The Supreme Court vacated the decision of a panel of this Court to grant federal habeas relief. After that, we again granted habeas relief based on different reasoning, and an en banc panel of this Court vacated that opinion and denied Hill's petition for relief. With the first petition unsuccessful, Hill has filed a second habeas petition. It's "second or successive." So Hill must meet the gatekeeping provisions of 28 U.S.C. § 2244(b)(2).
The brutal facts are familiar by now. Danny Hill and Timothy Combs kidnapped 12-year-old Raymond Fife as he was riding a bike to a friend's house before a Boy Scout meeting. Shoop v. Hill, 139 S.Ct. 504, 505 (2019) (per curiam); State v. Hill, Nos. 3720, 3745, 1989 WL 142761, at *1 (Ohio Ct. App. Nov. 27, 1989). Hill and Combs beat Fife up. See State v. Hill, 595 N.E.2d 884, 887-88, 902 (Ohio 1992). They raped him in multiple ways. See id. at 887. They strangled him, bit his genitals, sodomized him, and burned him. See id. Then, Hill and Combs left Fife in a field to die. See id. Fife's father found him in that field-Fife died two days later. Id. at 887-88.
Hill was indicted for kidnapping, rape, aggravated arson, felonious sexual penetration, and aggravated murder with specifications. Id. at 888. At trial, the government's case was substantial. Several witnesses testified that Hill was around the crime scene on the day of Fife's death. Id. at 889. The state introduced Hill's confession to police that he had watched Combs beat up and rape Fife. Id. at 888; see also Hill, 1989 WL 142761, at *2. And it also introduced Hill's statement that he had been with the victim when Combs had gone to the Valu-King to get more materials to torture Fife. Hill, 1989 WL 142761, at *3, *33; Hill, 595 N.E.2d at 888. The state introduced a broomstick into evidence-the broomstick, found behind the Valu-King, that was used to commit felonious sexual penetration. Hill, 595 N.E.2d at 887, 894, 899. One of the state's witnesses testified that Hill had raped her in the same wooded area where Fife was raped, and another testified that Hill had raped her multiple times after breaking into her home. Id. at 892. And other evidence for the rape showed that anal intercourse had been forcibly performed on Fife. Id. at 899.
Relevant here, the state's forensic odontologist testified at trial that in his "professional opinion, with reasonable degree of medical certainty, . . . Hill's teeth, as depicted by the models and the photographs that [he] had, made the bite on Fife's penis." Id. at 889. Hill called his own forensic odontologist, who said "that he could not conclude with a reasonable degree of certainty as to who made the bite marks on the victim's penis." Id. He followed up, however, with this: "What I'm saying is either Hill or Combs, or both, could have left some of the marks but the one mark that's consistent with the particular area most likely was left by Hill." Id.
In the end, a three-judge state-court panel convicted Hill of kidnapping, rape, aggravated arson, felonious sexual penetration, and aggravated murder with specifications. Id. at 899. The trial court then sentenced him to death. Id. at 902. Hill appealed to the Ohio Court of Appeals- challenging, among other things, the imposition of the death penalty based on an insufficiency of the evidence on the convictions and on the aggravators, which included rape. See Hill, 1989 WL 142761, at *3. The Ohio Court of Appeals explained that plentiful evidence, including Hill's confession that he had been with Combs at the time of Fife's rape and torture, supported the rape conviction: "The evidence of the rape included the biting of the penis, leaving teeth marks; the pulling of the genitalia, bruising the pelvic area; and the penetrating of the anus with the broom stick, perforating the rectum and rupturing the urinary bladder." Id. at *29. The Ohio Supreme Court agreed. See Hill, 595 N.E.2d at 902. And Hill's subsequent state habeas petition proved unavailing too. See State v. Hill, No. 94-T-5116, 1995 WL 418683, at *7 (Ohio Ct. App. June 16, 1995).
Hill filed his first federal habeas petition in 1996, challenging, among other things, the denial of expert assistance on the bitemark evidence in his state post-conviction petition under the Sixth, Eighth, and Fourteenth Amendments because "[t]he state of medical knowledge regarding bite marks was in flux at the time of the trial." (1996 Habeas Petition, p. 37.) See Hill v. Anderson, No. 4:96 CV 0795, 1999 U.S. Dist. LEXIS 23332, at *53, *61, *146 (N.D. Ohio Sept. 29, 1999).
The district court denied the petition, and Hill appealed. While the case was pending on appeal, the Supreme Court decided Atkins v. Virginia. See 536 U.S. 304, 321 (2002) (). Then, we remanded the case so that Hill could exhaust his state remedies on that claim. See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002).
The state court determined that Hill was not intellectually disabled, so his death sentence stood. See State v. Hill, 912 N.E.2d 107 (Ohio 2009) (unpublished table decision); State v. Hill, 894 N.E.2d 108, 195 (Ohio Ct. App. 2008). With that, Hill moved to reopen his habeas petition in federal district court and amended his claims. The district court rejected this petition too. See Hill v. Anderson, No. 4:96 CV 00795, 2014 WL 2890416, at *59 (N.D. Ohio June 25, 2014).
A panel of this Court then reversed the district court's denial of Hill's Atkins claim and granted habeas relief. See Hill v. Anderson, 881 F.3d 483, 513 (6th Cir. 2018). Next, the Supreme Court vacated that decision and remanded for the panel to reevaluate its reasoning. Hill, 139 S.Ct. at 509. The panel again granted habeas relief on the Atkins claim and granted the writ of habeas corpus as to Hill's death sentence. See Hill v. Anderson, 960 F.3d 260, 295 (6th Cir. 2020) (per curiam). Our Court, sitting en banc, vacated the panel's opinion and denied federal habeas relief. See Hill v. Shoop, 11 F.4th 373, 399 (6th Cir. 2021) (en banc), cert. denied, 142 S.Ct. 2579 (2022) (Mem.).
In the middle of all this habeas action, Hill moved in state court for leave to file a motion for new trial under Ohio Rule of Criminal Procedure 33(B)-a mechanism for allowing defendants to move for a new trial based on "newly discovered evidence" that the defendant "could not with reasonable diligence have discovered and produced at the trial."[1] This newly discovered evidence-Hill said-was a 2013 report from the American Board of Forensic Odontology ("ABFO") that suggested using bitemarks to identify a specific individual as the biter might not be reliable. Hill later added a 2016 report backing up the 2013 report.[2]
The state trial court allowed Hill to move for a new trial and conducted an evidentiary hearing. But that court noted that "[i]t is settled practice" that "newly discovered" evidence only "refers to evidence that existed at the time of trial but of which the moving party was ignorant." (R. 1-1, Motion for New Trial Decision, PageID 322.) And the court held that there was "no probability" that a new trial would lead to a "different outcome" without the bitemark evidence because the state had proffered so much other evidence of guilt.[3] (Id. at PageID 334.) The state appellate court agreed, State v. Hill, 125 N.E.3d 158, 176 (Ohio Ct. App. 2018), and the Ohio Supreme Court denied review, State v. Hill, 123 N.E.3d 1040 (Ohio 2019) (unpublished table decision).
That brings us to Hill's second federal habeas petition. In this June 2020 petition, Hill made two separate but related points: (1) his "conviction and sentence [we]re predicated on fabricated scientific evidence, violating his due process rights" (R. 1, Habeas Petition, PageID 295.); and (2) the state trial court violated his due process rights by not properly conducting a materiality review of the bitemark evidence under Ohio Rule of Criminal Procedure 33(B). Because Hill believed that his petition was second in time but...
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