902 F.3d 621
6th Cir.2018Background
- Wogenstahl, an Ohio death-row inmate, was convicted of aggravated murder and sentenced to death; his convictions and sentence were affirmed on direct appeal.
- He filed an initial federal habeas petition ( Case No. 1:99-cv-00843 ), which was denied after briefing, an evidentiary hearing, and appellate review (this court affirmed in Wogenstahl v. Mitchell).
- In 2013 the DOJ reviewed FBI microscopic hair-comparison testimony used at trial and sent a letter identifying statements that exceeded the science; Wogenstahl later obtained that letter and investigative materials from the original police file.
- In 2017 Wogenstahl filed a second-in-time § 2254 petition asserting Brady, false-testimony, ineffective-assistance, and cumulative-error claims; the district court construed it as a successive petition and transferred it to the Sixth Circuit for authorization.
- Wogenstahl moved to transfer the authorization question back to the district court and filed an application asking this court to permit him to file a second/successive petition under 28 U.S.C. § 2244(b).
- The Sixth Circuit denied the motion to transfer and granted authorization, finding the petition was second or successive and that Wogenstahl made a prima facie showing under § 2244(b)(2)(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition, though second-in-time, is not "second or successive" and thus need not satisfy § 2244(b) | Wogenstahl: his claims arise from facts discovered after the first petition, so the petition is not "second or successive." | Warden: petitioner attacks same conviction and raises claims that fall within § 2244(b)(2)(B); gatekeeping applies. | Petition is second-in-time and is "second or successive;" § 2244(b) gatekeeping applies. |
| Whether Wogenstahl’s application should be transferred back to district court for authorization proceedings | Wogenstahl: district court should handle it because claims are not successive or because transfer was improper. | Warden: proper to treat as successive and resolve authorization in appellate court. | Motion to transfer is denied; appellate court retains authorization decision. |
| Whether Wogenstahl made a prima facie showing under § 2244(b)(2)(B)(i) (due diligence in discovering factual predicate) | Wogenstahl: DOJ letter and police file were newly discovered; he pursued discovery repeatedly and exercised reasonable diligence. | Warden: (argued opposition) but court found evidence supports that DOJ review occurred after prior proceedings so could not have been earlier discovered. | Court held petitioner made a prima facie showing of due diligence for both DOJ letter and police-file evidence. |
| Whether petitioner made a prima facie showing under § 2244(b)(2)(B)(ii) (clear-and-convincing showing that, viewed in whole, no reasonable factfinder would convict) | Wogenstahl: suppressed police-file material plus repudiated FBI hair testimony undermines key testimony and, with other impeachment evidence, could show no reasonable jury would convict. | Warden: (disputed sufficiency) but court must be satisfied only at prima facie stage that claims warrant fuller exploration. | Court held petitioner made the lenient/prima facie showing that the suppressed evidence and DOJ letter warrant further district-court exploration. |
Key Cases Cited
- In re Sims, 111 F.3d 45 (6th Cir.) (procedures for successive habeas filings)
- McCleskey v. Zant, 499 U.S. 467 (U.S. 1991) (abuse-of-the-writ doctrine: when a numerically second petition is "second")
- Magwood v. Patterson, 561 U.S. 320 (U.S. 2010) (interpretation of "second or successive" with respect to challenged judgment)
- Panetti v. Quarterman, 551 U.S. 930 (U.S. 2007) (claims unripe at initial petition may not be "second or successive")
- In re Jones, 652 F.3d 603 (6th Cir.) (claims based on events arising after initial petition may avoid "second or successive")
- In re Lott, 366 F.3d 431 (6th Cir.) (prima facie standard for authorization is lenient and requires some documentation)
- Strickler v. Greene, 527 U.S. 263 (U.S. 1999) (elements of Brady claim)