In re Lott

• Decision Date: 22 April 2004
• Docket Number: No. 04-3462.,04-3462.
• Citation: 366 F.3d 431
• Parties: In re Gregory LOTT, Movant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 431

366 F.3d 431

In re Gregory LOTT, Movant.

No. 04-3462.

United States Court of Appeals, Sixth Circuit.

April 22, 2004.

David Hanson, Gregory W. Meyers, Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Appellant.

Michael L. Collyer, Office of Attorney General of Ohio, Cleveland, Ohio, for Respondent.

Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges.

ORDER AUTHORIZING THE DISTRICT COURT TO CONSIDER SECOND APPLICATION FOR A BRADY, ACTUAL INNOCENCE, GATEWAY CLAIM

The petitioner, Lott, scheduled to be executed April 27, 2004, in Ohio, has applied for an Order under 28 U.S.C. § 2244(b) (pertaining to "second or successive habeas corpus" petitions), directing the district court to consider his actual innocence claim based on evidence withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He has made the requisite "prima facie showing" under 28 U.S.C. § 2244(b)(3)(C). The application is granted and the execution stayed pending adjudication of the claim in the district court. The district court is authorized to consider the application.

The Brady claim (not tied to the actual innocence aspect of the claim) was presented in Lott's first federal habeas petition, but we ruled that the claim was procedurally barred and did not reach the constitutional merits of the claim. Lott v. Coyle, 261 F.3d 594, 619 (6th Cir.2001) ("Lott never raised in state court the specific objection he raises today, and thus we are foreclosed from reviewing it"). We interpreted Ohio state law to create an adequate and independent state ground precluding the federal court from reaching the claim. Id. at 617-19. As to the "actual innocence" or "miscarriage of justice" aspect of the claim, we concluded that "since the issue may now be pending in state court and has not been fully briefed before us, we reach no final conclusion...." Id. at 619. Thus, no federal court has decided the constitutional merits of the petitioner's Brady claim or his actual innocence claim.

After our opinion, the Ohio courts did in fact reach the Brady claim on the merits based on a second petition for post-conviction relief filed in state court. State v. Lott, Nos. 79790, 79791, 79792, 2002 WL 1265579 (Ohio Ct.App. May 30, 2002). The state court fully adjudicated the constitutional merits of the Brady claim, discussing at length the facts on the merits and deciding the merits against the petitioner.

Thus, this current application for a second federal petition is, if granted, the first time in a federal court that the "factual predicate" for the constitutional claim would be recognized and adjudicated. Although the "factual predicate" for the claim was discovered prior to the adoption of AEDPA, when new stringent requirements were first imposed in death cases, this is the first time since the adoption of AEDPA that a federal court could consider the merits of the constitutional claim. It is not the fault of Lott or his counsel that this is the first time since AEDPA's adoption that a federal court could consider the claim on the merits. This means, we believe, that the second petition should be authorized if the petitioner in his application makes simply a "prima facie showing" that the facts underlying the claim "if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2)(B)(ii).

A "prima facie showing," as Judge Posner pointed out for the Seventh Circuit, is not a difficult standard to meet:

By "prima facie showing" we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case.

Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997). "Prima facie" in this context means simply sufficient allegations of fact together with some documentation that would "warrant a fuller exploration in the district court." Those allegations of fact, together with documentation, are clearly presented in the application before us. Judge Posner's "tight deadline" point is further reinforced by subsection (b)(3)(E), which states that "the grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." Congress has emphasized the need for quick action by the court without further review.

We conclude that this lenient prima facie standard is met and that the matter should be adjudicated. Lott has made a prima facie showing through documents that the prosecutor of Lott's case fraudulently failed to disclose at trial that the murder victim, before dying, identified a person with a different skin color from Lott as his assailant. The petitioner Lott has also made a prima facie showing that the victim identified his assailant as someone whom he had seen at his local barber shop and that the prosecutor at trial fraudulently refused to reveal this fact as well. In addition, the petitioner Lott has made a prima facie showing that the prosecutor at trial falsely stated to the court that the instrumentality that caused the victim's death — namely, kerosene lamp fluid — was not present in the victim's house and had to be brought into the house for the purpose of killing the victim by the petitioner Lott. The petitioner Lott has made a prima facie showing that the victim had a kerosene gas lamp in his home which he used, a lamp that would have used the type of kerosene lamp fluid which caused the victim's death. Lott has made a prima facie showing that the prosecutor made statements to the court at trial directly contrary to these facts which he knew to be true in order to use the lamp fluid to prove premeditation, an element required in order for the prosecutor to secure the death penalty. Through the citation and quotation of many Ohio opinions, Lott has also made a prima facie showing that the prosecutor has been guilty of similar misconduct in more than ten other cases.¹

Taking the evidence as a whole, we conclude that petitioner's application makes a prima facie showing of constitutional Brady error that, if proved in the district court, may be sufficient to cause the fact finder to reach the conclusion beyond a reasonable doubt that the petitioner was not guilty of premeditatedly murdering the victim.

Obviously, the egregious prosecutorial misconduct alleged here, if proved, must be deterred. So long as we value the rule of law, such conduct, if it occurred, cannot be tolerated in any kind of case — much less in death penalty cases.

Accordingly, the application for an Order authorizing the district court to proceed with his application is hereby granted and the execution of Lott is hereby stayed pending adjudication in the district court.

BOGGS, Chief Judge, dissenting.

After a thorough review of the record, I can discern no legal basis upon which we could, much less should, grant Lott's request for consideration of a second habeas petition. Therefore, I respectfully dissent.

Lott appealed to this court the denial of his first petition for habeas relief, and this panel affirmed. Lott v. Coyle, 261 F.3d 594 (6th Cir.2001). Any disposition of a habeas petition on the merits, including dismissing on the grounds of procedural default, means that a defendant has exhausted his unrestricted right to petition for habeas relief. In re Cook, 215 F.3d 606, 608 (6th Cir.2000); Harvey v. Horan, 278 F.3d 370, 379-80 (4th Cir.2002) (citing cases from the Second, Fifth, and Tenth Circuits). The requirements for a successive habeas petition are strict and Lott cannot meet them.

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs any subsequent petition for habeas relief; the relevant part of the statute states:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(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)(1)-(2).

Lott briefed his Brady and actual innocence claims in his first appeal of the habeas denial to this court. Appellant Br., Lott v. Coyle, 261 F.3d 594 (Brady), 44 (actual innocence). Therefore, under 28 U.S.C. § 2244(b)(1), he cannot present them again. I question the assertion in the order that this current petition is "the first time in a federal court that the `factual predicate' for the constitutional claim would be recognized and adjudicated." (Maj. Op. at 432). It is worth clarifying that the "factual predicate" for actual innocence is exactly the same as the Brady claim: primarily the victim's description of his assailant. This issue was briefed in the original case; this panel considered...