Re: John W. Byrd Jr.

• Decision Date: 10 September 2001
• Docket Number: No. 01-3927,01-3927
• Parties: (6th Cir. 2001) In re: John W. Byrd, Jr., Movant
• Court: U.S. Court of Appeals — Sixth Circuit

Page 544

269 F.3d 544 (6th Cir. 2001)

In re: John W. Byrd, Jr., Movant.

No. 01-3927

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

September 10, 2001

David H. Bodiker, Jane P. Perry, Public Defender's Office, Ohio Public Defender Commission, David M. Gormley, Office of the Attorney General, Columbus, OH, for Appellant.

Before: JONES, SUHRHEINRICH, and BATCHELDER, Circuit Judges.

ORDER DENYING JOHN BYRD'S MOTION TO DETERMINE WHETHER 28 U.S.C. §a2244(b) OF THE AEDPA APPLIES TO HIS CASE, AND GRANTING A TEMPORARY STAY OF EXECUTION UNTIL SEPTEMBER 18, 2001.

SUHRHEINRICH, Circuit Judge.

Movant John W. Byrd, scheduled to be executed by the State of Ohio on September 12, 2001 at 10 a.m., seeks a stay of execution while he pursues a second federal habeas petition.¹ Byrd also asks this Court to determine that 28 U.S.C. § 2244(b), the Anti-Terrorism and Effective Death Penalty Act, "AEDPA," which bars second or successive petitions unless they are based on facts which could not have been discovered previously through the exercise of due diligence, does not apply to him. For the following reasons, Byrd's motion for stay of execution is DENIED, but the execution will be stayed until September 18, 2001, upon the request of a panel member for additional time to consider the matter. Byrd's request to file a second habeas petition is also DENIED as barred under § 2244(b) of the AEDPA.

I.

Byrd was convicted by a jury and sentenced in 1983. He was originally scheduled to be executed on January 27, 1984. Byrd's convictions and sentences were upheld on direct appeal to the Ohio Court of Appeals, see State v. Byrd, No. C-830676, B-831662 (Ohio Ct. App. Feb. 5 1986), on direct appeal to the Ohio Supreme Court, see State v. Byrd, 512 N.E.2d 611 (Ohio 1987), and the Supreme Court denied certiorari. See Byrd v. Ohio, 484 U.S.1037 (1988). Byrd also filed a motion for a new trial in December 1983, which the trial court denied in September 1989. The Ohio Court of Appeals upheld the trial court, see State v. Byrd, No. C-890659 (Ohio Ct. App. Feb. 13, 1991), and the Ohio Supreme Court subsequently declined jurisdiction. See State v. Byrd, 574 N.E.2d 1092 (Ohio 1991).

In 1988 Byrd filed his first petition for state postconviction relief, which the trial court denied. The Ohio Court of Appeals reversed in 1991 and remanded the case for further proceedings. On remand the trial court again entered summary judgment for the state, and Byrd appealed. The Ohio Court of Appeals affirmed, see State v. Byrd, No C-910340 (Ohio Ct. App. Feb. 26, 1992), and the Ohio Supreme Court declined jurisdiction. See State v. Byrd, 596 N.E.2d 472 (Ohio 1992).

Byrd filed his initial petition for writ of habeas corpus under 28 U.S.C. § 2254(d) on March 7, 1994. The district court denied an evidentiary hearing and habeas relief in 1995. Byrd v. Collins, No. C-1-94-167, slip. op. (S.D. Ohio July 28, 1995); Byrd v. Collins, No. C-1-94-167, slip. op. Nov. 2, 1995). Last year, over dissent this Court affirmed the judgment of the district court. Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000).² A divided court denied Byrd's petition for rehearing en banc. Byrd v. Collins, No. 96-3202, amended en banc order (6th Cir. Aug. 22, 2000). The United States Supreme Court denied Byrd's petition for writ of certiorari on January 8, 2001. Byrd v. Collins, 531 U.S. 1082 (2001). The district court subsequently issued a mandate dismissing Byrd's habeas petition on January 25, 2001.

On January 26, 2001, Byrd filed a motion in the Ohio Supreme Court seeking a stay of execution to permit him to litigate the issue of his actual innocence of the death penalty. On March 20, 2001, the Ohio Supreme Court issued an entry permitting Byrd to file a second state post-conviction petition in the trial court and remanding the case for a hearing on the claim that he was actually innocent of the death penalty. The Ohio Supreme Court's entry set Byrd's execution date for September 12, 2001. State v. Byrd, 744 N.E.2d 190 (2001).

Byrd filed a petition for post-conviction relief in the Hamilton County, Ohio, trial court on April 9, 2001. In it he raised,inter alia, the claim that he was actually innocent of the death penalty. Byrd based his first claim on the 1989 affidavit of co-defendant John Brewer, in which Brewer alleges that he, not Byrd, actually murdered Monte Tewksbury. In his second claim Byrd alleged that the trial testimony of state's witness Ronald Armstead and the grand jury testimony of state witness Virgil Jordan were not credible. He also requested discovery of records from the prosecutor's office and the state department of corrections. The trial court denied Byrd's discovery requests and dismissed Byrd's post-conviction petition without an evidentiary hearing on May 25, 2001. State Byrd, No. B-831662(A) (Hamilton C.P. May 25, 2001). Regarding the Brewer affidavit, the court held:

Byrd and his attorneys agree that they received Brewer's 1989 affidavit in 1989. For tactical reasons, they did not file the affidavit or make it known to this or any court at that time even though Byrd had a motion for a new trial pending at that time. Byrd, in 1989, was pursuing an appeal and a motion for new trial contending in part that Byrd was not even at the scene of the crime on the night in question. Brewer's affidavit puts Byrd squarely at the crime scene.

As a consequence of this tactical decision by Byrd and his attorneys, Byrd is now barred, under Criminal Rule 33, from filing a motion for a new trial because, as his attorney conceded in oral argument, the 1989 affidavit is not newly discovered evidence.

Byrd and his attorneys now insist that the 1989 affidavit is true. Thus, Byrd concedes that the position he pursued in court for so long, that he was not at the crime scene, is untrue. Byrd now concedes that he was there but that Brewer, not Byrd, stabbed the victim.

The affidavit of Brewer in 1989 lacks any credibility whatsoever. The 1989 affidavit is inconsistent with his 2001 affidavit to say nothing of his sworn testimony at his trial. As the State accurately points out, Brewer continued to make statements identifying Byrd as the principal offender well into his period of incarceration to a variety of people. The Brewer affidavit lacks any credibility for a variety of reasons including those cited by the State during oral argument. The affidavits fail to meet the standard set forth in Herrara v. Collins, 506 U.S. 390 (1993).

The trial court ruled that the claim of actual innocence based on Armstead's lack of credibility was barred by res judicata.

The Ohio Court of Appeals affirmed the trial court's judgment on August 21, 2001. State v. Byrd, No. C-010379, 2001 WL 950185 (Hamilton Ct. App. Aug, 21, 2001) (per curiam). The appeals court stated in relevant part:

In his first claim for relief, Byrd contended that he was "actually innocent" of aggravated murder because his co-defendant John Brewer killed Tewksbury. Byrd cited to portions of the trial transcript and material adduced at his trial to demonstrate that Brewer was the killer. Byrd additionally presented two affidavits signed by Brewer on May 16, 1989, and January 24, 2001, respectively, in which Brewer claimed that he, and not Byrd, fatally stabbed Tewksbury. Byrd also presented the affidavit of Dan Cahill, a fellow inmate of Brewer at the Southern Ohio Correctional Facility, who claimed that Brewer had told him that he murdered Tewksbury.

. . .

In this case, the trial court dismissed Byrd's claim of "actual innocence" for two reasons: first, because it did not give rise to a constitutional violation in the proceedings that resulted in his conviction; and second, because the evidentiary basis for the claim- John Brewer's statement that he had actually killed Tewksbury--"lacked any credibility whatsoever." We agree. . . . With respect to the second reason, we note, under Herrara, supra, that the evidentiary threshold for a claim of actual innocence is "extraordinarily high." On the state of the record in this case, the trial court was entitled to conclude that the evidence provided by Byrd in the affidavits fell "far short" of that which would have been necessary to make out a cognizable constitutional claim.

2001 WL 950185, at * 5-7 (footnote omitted). The Ohio Court of Appeals also agreed with the trial court's conclusion that Byrd's second claim challenging Armstead's credibility was barred by res judicata because it had been raised at his trial, on appeal, in his first postconviction petition, and in federal habeas corpus proceedings.

On August 29, 2001, the Ohio Supreme Court declined jurisdiction and dismissed the appeal "as not involving any substantial constitutional question." State v. Byrd, Case No. 01-1515 (August 29, 2001).

II.

Under the AEDPA, a petitioner is required, prior to filing a second or successive habeas corpus petition in the district court, to seek authorization "in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).³ Under the AEDPA, a second or successive habeas corpus application under § 2254 that was not presented in a prior application "shall be dismissed unless" the applicant shows "the factual predicate" for his new claim of innocence "could not have been discovered previously through the exercise of due diligence," or 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." 28 U.S.C. § 2244(2)(A) & (B).⁴

Byrd does not rely on a new rule of constitutional law and he openly admits that he cannot establish that the factual predicate for his new claim is newly discovered. See Byrd's Memorandum in Support at 17 ("John Byrd has not claimed and could not claim that he has newly discovered evidence of actual innocence of the death penalty as defined in § 2244(b) of AEDPA.") (Emphasis in...