In re Jackson

• Decision Date: 02 September 2021
• Docket Number: No. 21-3102,21-3102
• Citation: 12 F.4th 604
• Parties: IN RE: Kareem JACKSON, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.4th 604

IN RE: Kareem JACKSON, Movant.

No. 21-3102

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 2, 2021

ON MOTION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND ON MOTION TO REMAND: Alan C. Rossman, Bevlynn J. Sledge, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Movant. ON RESPONSE: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Respondent.

Before: BOGGS, MOORE, and CLAY, Circuit Judges.

The panel delivered the order of the court. MOORE, J. (pp. 611–16), delivered a separate concurring opinion. BOGGS, J. (pp. 616–17), delivered a separate dissenting opinion.

ORDER

Kareem Jackson, 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 petition is not "second or successive" such that his claims must meet the requirements of § 2244(b). For the following reasons, Jackson's motion to remand is DENIED ; his application for permission to file a second or successive habeas corpus petition is GRANTED .

Jackson was convicted of six counts of aggravated murder (with capital specifications), three counts of aggravated robbery, four counts of kidnapping, and one count of felonious assault, and sentenced to death. He exhausted direct-appeal and state post-conviction remedies and then filed a federal habeas corpus petition, which was denied. See Jackson v. Bradshaw , 681 F.3d 753 (6th Cir. 2012). We denied a prior motion for remand and application for permission to file a second or successive petition in a previous order. In re Kareem Jackson , No. 15-4055 (6th Cir. Jan. 13, 2016) (order).

Jackson returned to the district court in August 2020 and filed the federal habeas corpus petition now before us, asserting that: the prosecution withheld material and exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; the prosecution presented false and coerced testimony in violation of Napue v. Illinois , 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ; and Ohio's post-conviction scheme violates the Supremacy Clause. The warden filed a motion to transfer the action to this Court, arguing that, under § 2244(b), Jackson needed permission from a court of appeals before filing a successive petition. Relying on Panetti v. Quarterman , 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007), and Stewart v. Martinez-Villareal , 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), Jackson responded that his claims were not previously ripe for review and therefore not subject to § 2244(b) ’s requirements. The warden replied that In re Wogenstahl , 902 F.3d 621 (6th Cir. 2018) (per curiam), controlled and required that the action be transferred to this Court.

The district court granted the warden's transfer motion.

Before this Court, Jackson only includes his Brady and Napue claims in his corrected application for leave to file a successive habeas petition. Specifically, Jackson claims that the government suppressed a statement from a key eyewitness, Rebecca Lewis, that her initial description of the suspect did not match Jackson, but rather matched that of an alternative suspect. He also claims under Brady that another witness statement supporting the inference that the alternative suspect committed the murders was suppressed. Under Brady , as well as Napue , Jackson contends that his counsel recently received a declaration from the witness Ivana King that she had been coerced by police into testifying that Jackson confessed to the murders.

Jackson also filed a motion to remand the case to the district court. The warden filed a response opposing the application and the motion. Jackson has filed a reply.

I. Motion to Remand

Jackson argues that § 2244, which governs the finality of federal habeas proceedings, does not apply in this case. He contends our decision in Wogenstahl contravenes prior precedent and therefore is not controlling. See Darrah v. City of Oak Park , 255 F.3d 301, 310 (6th Cir. 2001) ("[W]hen a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case."). Wogenstahl does not contradict our prior decisions in In re Jones , 652 F.3d 603, 605 (6th Cir. 2010), and Hill v. Mitchell , 842 F.3d 910, 925 (6th Cir. 2016), as Jackson claims. In Jones , we found that the petitioner's claim challenging changes to Michigan's parole system that took effect after the petitioner's original petition had been filed was not second or successive so as to require § 2244(b) authorization. Jones , 652 F.3d at 605–06. Hill found that a particular Brady claim did not relate back to a general Brady claim for habeas relief in the original petition that had been "completely bereft of specific fact allegations or evidentiary support and was not tied to any particular theory of relief." Hill , 842 F.3d at 924. Since these decisions do not implicate the holding in Wogenstahl , we are bound to follow the later opinion. See Freed v. Thomas , 976 F.3d 729, 738 (6th Cir. 2020) (recognizing that a holding of a published panel opinion binds later panels unless the decision is overruled en banc or by the Supreme Court).

In Wogenstahl , we held that a habeas claim was ripe if the facts underlying the claim "had already occurred when he filed his petition, although Wogenstahl was unaware of these facts." In re Wogenstahl , 902 F.3d at 627–28. In particular, in that case as in this one, we found that the petitioner's Brady claim fell "within the scenario contemplated by § 2244(b)(2)(B)," because he was raising claims that he did not raise in his first petition and he was relying on recently discovered facts. Id. at 628. Accordingly, we held that "Wogenstahl's petition is both second-in-time and second or successive, and he must therefore pass through the gatekeeping mechanism of § 2244(b)(2)(B)." Id. at 628. So too here.¹

II. Application to File a Second or Successive Habeas Petition

Under § 2244(b)(2)(B), a claim for habeas relief based on new facts like Jackson's, rather than new law, see § 2244(b)(2)(A), must be dismissed unless:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(B).

This Court "may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection." Id. at § 2244(b)(3)(C). A prima facie showing involves the presentation of "sufficient allegations of fact together with some documentation that would ‘warrant a fuller exploration in the district court.’ " In re Lott , 366 F.3d 431, 433 (6th Cir. 2004) (quoting Bennett v. United States , 119 F.3d 468, 469 (7th Cir. 1997) ).

It is unclear precisely how Jackson obtained the two witness statements that he claims were suppressed under Brady , which bears on the question of whether "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence." 28 U.S.C. § 2244(b)(2)(B)(i). According to Jackson, police suppressed evidence that Rebecca Lewis, who was a key witness at trial, had initially described the suspect who had hit her in the head with a gun in a way that did not match Jackson, but did match a shorter alternative suspect, "Little Bee." Jackson also claims that a statement from a neighbor supports the inference that Little Bee committed the murders. Jackson suggests that these statements were unobtainable under Ohio law until the Ohio Supreme Court's decision in State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 89 N.E.3d 598 (2016), expanded the discovery mechanisms available to defendants who had exhausted their direct appeals. However, Caster was not decided until December 2016, and Jackson presented these witness statements to us in April 2016. Thus, while Jackson may not have been able to obtain these witness statements until well after his trial, it cannot be because of the precedent overturned in Caster . However, Jackson's proposed petition also explains that "the exculpatory evidence was first disclosed by the State in Clemency-related Public Records Act litigation," which presumably would not have been available until Jackson's date of execution approached. (Habeas Petition, R. 1-2, Page ID #52.) We conclude that Jackson has a made a prima facie showing that the witness statements implicating Little Bee could not have been discovered earlier through the exercise of due diligence.

Jackson similarly argues that the facts underlying his Brady / Napue false testimony claim were unavailable until Ivana King provided Jackson's counsel with a declaration that law enforcement had intimidated her into falsely testifying that Jackson had confessed to the murders. Jackson has made a prima facie argument that this evidence was suppressed as well and that he could not have obtained it through the exercise of due diligence. See In re McDonald , 514 F.3d 539, 545 (6th Cir. 2008) (finding that claims regarding coerced testimony could not have been discovered for purposes of § 2244(b) application until key witness provided an affidavit regarding coercion).

Jackson has also met his obligation to make a prima facie showing under § 2244(b)(2)(B)(ii) that "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and...