In Re Gregory Lott, Movant

Gregory LOTT, Movant. In re

No. 04-3462. Appeals,

United States Court

Sixth Circuit. 22, 2004.

April Hanson, Meyers, Gregory

David W. Office, De- Defender’s Ohio Public Public Commission, Columbus, OH, fender Appellant. Attorney Collyer,

Michael L. Office Cleveland, Ohio, Ohio, for Re- General spondent. BOGGS, our courts in Judge; opinion, After the Ohio did

Before: Chief COLE, Judges. Brady Circuit fact reach the claim on the merits MERRITT and petition post-convic- on a

based second THE DIS- in tion relief filed state court. State v. ORDER AUTHORIZING Lott, 79790, 79791, 79792, TO CONSIDER Nos. TRICT COURT (Ohio FOR A Ct.App. May The APPLICATION SECOND INNOCENCE, BRADY, ACTUAL fully adjudicated state court the constitu- claim, Brady CLAIM tional merits of the discuss- GATEWAY length facts on the and the merits petitioner, The scheduled deciding against petitioner. the the merits 2004, Ohio, ap- in April executed has plied for an Order under 28 U.S.C. Thus, this current for a 2244(b) § or (pertaining to “second succes- is, if granted, second federal the corpus” petitions), directing sive habeas first time a federal court that the “factu the district court to consider his actual predicate” al for the constitutional claim innocence claim based on evidence with- recognized adjudicated. would be and Al Brady Maryland, held in violation of though predicate” the “factual for the 373 U.S. 83 S.Ct. prior adoption claim was discovered to the (1963). requisite the “prima He has made AEDPA, stringent require of when new showing” facie under 28 U.S.C. cases, imposed ments were first death 2244(b)(3)(C). § grant- The adoption this is the first time since the of stayed adju- pending ed and the execution AEDPA that a federal court could consider dication of the claim the district court. the merits of the constitutional claim. It is authorized to The district court is consider not the fault of Lott or his counsel that application. the adop this is the first time since AEDPA’s (not Brady tied to the actual tion that a court federal could consider the claim) present- aspect innocence means, claim on the merits. This we be habeas petition, ed Lott’s first federal lieve, that the second should be procedur- but we ruled that the claim was petitioner applica authorized ally barred and did not reach the constitu- simply “prima showing” tion makes a facie Coyle, tional merits of the claim. Lott v. “if underlying facts the claim (6th Cir.2001) (“Lott 261 F.3d proven viewed of the evi specific never raised in state court dence as a would be sufficient to objection today, he raises and thus we are establish clear and it”). reviewing foreclosed from We inter- no rea preted law to create an ade- Ohio state sonable fact finder would have found the quate ground independent pre- state offense.” cluding reaching from the federal court 28 U.S.C. claim. Id. at 617-19. As to the “actual A “prima showing,” Judge facie justice” “miscarriage innocence” or as- Circuit, pointed Posner out for the Seventh claim, pect of the concluded that “since we is not difficult standard to meet: pending

the issue in state now fully By court “prima showing” and has not been briefed before facie we understand (without us, we guidance statutory reach no final conclusion....” Id. at lan- law) Thus, history 619. court guage simply no federal has decided or case petitioner’s possible constitutional merits sufficient merit Brady exploration by claim or his actual innocence claim. warrant a fuller the dis- person have with a different skin color from usually All that we

trict court. ruling applica- on such us Lott as assailant. The tion, tight we must do under which a prima has also made facie 2244(b)(3)(D)), (see 28 U.S.C. deadline the victim identified his assailant as some- itself and documents application is the one whom he had seen his local barber it, consisting to be attached required shop prosecutor and that the at trial fraud- opinions motions and previous ulently refused to reveal this fact as well. the case. addition, petitioner Lott has made a States, 468, 469 Bennett v. United prima showing prosecutor facie that the (7th Cir.1997). “Prima facie” this con falsely trial stated to the court that of simply allegations sufficient text means instrumentality that caused the victim’s with some documentation together fact namely, lamp kerosene fluid—was death' — exploration a fuller that would “warrant present not in the victim’s house and had allegations Those of the district court.” for the brought pur- to be into the house documentation, fact, are together with pose killing by petitioner of the victim the clearly in the before petitioner pri- Lott. The Lott has made a point Judge “tight Posner’s deadline” us. ma facie the victim had a by subsection further reinforced in his he gas lamp kerosene home which (b)(3)(E), that “the which states used, lamp a that would have used the by of an authorization a court denial type lamp of kerosene fluid which caused appli to file a second or successive appeals made a prima the victim’s death. Lott has not appealable not and shall cation shall be prosecutor that* the made facie rehearing subject of a directly to the court at trial statements Congress certiorari.” has or for writ of he contrary to these facts which knew by action emphasized quick the need for lamp in order to use the fluid to be true further review. the court without an prove premeditation, required element prima conclude that this lenient We prosecutor for the to secure the order and that the matter facie standard is met the citation and penalty. Through death adjudicated. Lott has made should many opinions, Ohio Lott has quotation showing through documents prima facie showing that the prima also made a facie of Lott’s case fraudu prosecutor mis- guilty has been of similar prosecutor lently failed to disclose at trial victim, in more than ten other cases.1 dying, identified a conduct murder evi- properly commented on excluded prima case offered on this 1. Part of the facie Harris, dence.”); App. application, v. 1990 Ohio page 1 of Lott's State point is found on (1990) (prosecutorial 5451 miscon- as follows: LEXIS Hedrick, found, harmless); v. Marino, duct but State prosecutor, Carmen Mr. Lott’s trial (1990) App. (prose- Ohio LEXIS 5647 1990 breaking track record of has a shameful making improper cutorial misconduct State v. Liber rules to win convictions. See 583, 589-90, of record and atore, on matters outside comments 433 69 Ohio St.2d testify.); State v. (1982) ("the on defendant’s failure prosecutorial blun- N.E.2d 561 Durr, 86, 568 N.E.2d 674 58 Ohio St.3d in this case are too extensive to be ders (1991) appel- excused.”); (improper on the comments Owensby, 1985 WL State v. statement, 7351, appellant's unsworn App. LEXIS *3 lant's 1985 Ohio convictions, mitigating (1985) clearly prior factors ("prosecutor's comments Keenan, harmless.); 66 Ohio State v. 'earnestness held outside the bounds of mere (1993) Heinish, (present- ”); St.3d 613 N.E.2d vigor[.]' State v. and 236144, *19, prosecuto- "aggravated example” of App. LEXIS 1988 Ohio D’Ambrosio, misconduct); v. ("Clearly prosecutor State im- rial *20 (6th Cir.2000); Horan, Harvey as a we con- Taking the evidence (4th Cir.2002) (citing makes a 278 F.3d 379-80 petitioner’s clude that Second, Fifth, showing of Bra- from the prima facie cases and Tenth Circuits). dy proved requirements the district for a succes- error court, to cause the fact sive habeas are strict and Lott may be sufficient beyond the conclusion cannot meet finder to reach them. reasonable doubt The Antiterrorism and Effective Death murdering the premeditatedly (AEDPA) Penalty governs any Act subse-

victim. relief; quent petition for habeas the rele- Obviously, egregious prosecutorial vant the statute states: here, proved, if alleged misconduct must (b)(1) A claim in a presented second or long So as we value the rule deterred. corpus application successive habeas un- conduct, occurred, law, if it cannot such presented der section 2254 that was in a any kind of case—much be tolerated prior application shall be dismissed. cases. penalty less in death (2) A presented claim a second or an Accordingly, for Or- corpus application successive habeas un- authorizing pro- der the district court to hereby der section 2254 that was not granted ceed hereby stayed prior application of Lott is shall be dismissed and the execution pending adjudication the district court. unless— (A) applicant shows that the claim BOGGS, Judge, dissenting. Chief law, relies on a new rule of constitutional record, thorough review of the After a made retroactive to cases on collateral legal upon can basis which we discern by Court, Supreme review that was should, could, much less Lott’s re- unavailable; previously quest for consideration of a second habeas (B)(i) predicate the factual for the claim Therefore, I petition. respectfully dissent. previous- could not have been discovered to this court the denial of appealed ly through the exercise of diligence; due relief, and this petition his first habeas Coyle, panel affirmed. Lott v. 261 F.3d (ii) (6th Cir.2001). claim, Any the facts disposition of a merits, petition including proven on the and viewed in habeas of the evi- dismissing grounds procedural on the dence as a would be sufficient to default, that a ex- means defendant has establish clear and evi- right hausted his unrestricted dence Cook,

for habeas relief. In re no reasonable factfinder would have (1993) just county pros- Ohio St.3d 616 N.E.2d 909 receive what the assistant found, him.”); (prosecutorial give misconduct but either ecutor said he would not State harmless); Johnson, Larkins, (Nov. waived or State v. v. 2003 WL 22510579 (1993) 2003), App. Cuyahoga App. unreport- 1992 Ohio LEXIS *17 No. (prosecutorial (affirming grant upon misconduct ed "[rose] of new trial find- errors."); being eyewitness level of State that Marino withheld de- Matthews, 135264, *2, Larkin; scriptions matching ahid deal App. (prosecu- testimony Ohio LEXIS *5 he struck to obtain the of the witnesses, making only eyewitness; tor denied a deal with claimed then stood silent however, ample sug- "[t]here is evidence to as she lied about the deal and her criminal trial). gest during at least did in fact [the witness] record of the under- dication of Lott’s first habeas found relieve him of the therefore burdens lying offense. imposes. AEDPA 2244(b)(1)-(2). § 28 U.S.C. Brady and actual inno-

Lott briefed his truly If we did “not reach the constitu- appeal first claims cence tional merits” of Lott’s actual innocence Br., Appellant to this court. habeas denial claim, theory the court’s creates clear (Brady), 44 Coyle, 261 F.3d 594 Lott v. high mechanism for end-run around the (actual innocence). Therefore, under 28 order, resting bar of 2244. This as it 2244(b)(1), present he cannot procedural, does on rather than factual o.ur the assertion again. question them ruling for a of our first basis petition is “the the order that this current that a can appeal, give means ‘factu- time in a federal court first exactly AEDPA capital defendant what al for the constitutional predicate’ prohibits apple two bites without adjudicated.” recognized and would be actually having to meet AEDPA’s stan- (Maj. clarifying It is worth Op. petition, simply by dards for a successive for actual inno- predicate” that the “factual failing to rule on the factual merits of some Brady exactly the same as cence is claim. description the victim’s primarily claim: instance, majority really For never in was briefed his assailant. This issue says diligence that Lott met the due stan- case; original this considered 2244(b)(2)(B)®, just §of it slides dard opin- in description original its

variance that saying around it this would at 618. The extent ion. F.3d in a court that be “the first time federal consider Lott’s constitu- which we “could” predicate’ the ‘factual for the constitutional changed not between his tional claims has adjudicat- recognized claim would be consider his Bra- petitions. two We could ed,” though majority immediately so, adjudication, claim in our earlier did dy that the was thereafter concedes evidence defaulted. procedurally and found it 432). (Maj. long ago. Op. at discovered actual inno- could consider his We also no of a new rule Lott has made so, expounded cence claim did law, and therefore 28 of constitutional ultimately upon length it at dicta. We 2244(b)(2)(A) is not an avenue of U.S.C. reach an ade- decided that we could not to him. open relief that is because of insufficient ev- quate conclusion actual Although argues Lott that his about a confession idence the record made, on evidence predicated innocence claim is suppressed which was that had and was not prosecution withheld of a Miranda violation. Id. because that con- three-judge panel to the simply declined to decide available 620-21. We him, the evidence and sentenced preclude confession would victed whether Lott’s proce- claim; 1991. Lott has had we did not con- came to an actual innocence the evidence be- beyond getting dural difficulties that the claim itself was our clude (“Since courts, appel- because his initial issue fore the purview. Id. at 621 this introduce it. lawyer late chose not in state court and has not pending now be us, However, is evidence the standard here fully we reach no been briefed discovered with that “could not” have been regarding final the effect of the conclusion confession.”) added). only could the evidence Nothing diligence. due Not (emphasis discovered, it been was. Clause suggests that our here have the case law or statute (b)(2)(B)® adju- is not satisfied. to constitute opinion was insufficient sum, separate are with a Prosecutorial misconduct is a we issue and cannot be used to bolster a that does not meet for successive habeas weak of actual innocence. Such governing the statute con- the criteria of prerequisite misconduct can constitute the claims. We have no sideration of such constitutional violation for a claim for re- grant it. legal on which to basis Delo, Schlup petition- lief under but the persuaded ignore if I could be Even rely er cannot on that malfeasance to statute, interpretation I can see no an inference of actual build innocence. question the evidence would “be Delo, 298, 324, Schlup v. 513 U.S. by clear and sufficient to establish convinc- (explain- S.Ct. ing ing petitioner asserting that a actual inno- error, no reasonable factfinder would have “support allegations cence must underly- found the constitutional error with new reliable evi- dence”). No matter how strenuous the offense.” prosecu- rhetoric of condemnation of the than apply, This is the test we must rather here, tor it compliance substitute for majority the much lower standard with AEDPA. uses: “sufficient to cause the fact finder to beyond reach the conclusion reasonable briefly evidentiary will address doubt that the claims Lott claims entitles him to premeditatedly murdering the victim.” bring petition. a second habeas Bell, (Op. Compare House v. 311 Discrepancies Description Cir.2002) (6th (en banc) 767, 778, F.3d n. 4 victim was able to describe his as- J.) (“Scholastic (Merritt, aside, arguments sailant as an man African-American surely really no one would hold the view hair, build, skin, long light a medium who if that House should be executed 99 of shirt, light-colored grayish wore a tennis 100, jurors or even 50 of would now seri- shoes, cap and a without a bill. When ously persuasiveness doubt the of the arrested, Lott was he had short hair and nonhy- state’s case. the real world of medium to dark skin tone. Since two pothetical juridical minds, only a new trial passed weeks had between the assault and jurors prob- with real will resolve such a arrest, ample opportunity he had lem.”) House, at (Boggs, hair; fact, 783 cut his hair is so short J., (“the dissenting) Schlup photo standard ‘does the taken when he was booked that merely require easily that a rea- one could very conclude that he had light recently visited his police sonable doubt exists of the new barber. The evidence, matching found tennis shoes the rather that no victim’s but reasonable description print Lott’s car. A sole juror would have found the defendant ” the crime scene is at least consistent with guilty.’ Schlup, 513 U.S. 115 shoe, although that not a confirmed match. S.Ct. 130 L.Ed.2d 808.... “[T]he 10"; The victim said his assailant was 5' opinion expresses court’s the court’s belief I remarkably Lott is 6 feet. find that a that be House’s sentence must overturned good guess, given vantage McGrath’s jurors ‘even 50 of ... would now point: up tied on the floor. seriously persuasiveness doubt the of the However, state’s case.’ ... it is as clear That only opin- leaves the difference of English as the can it language make that ion between the shade of Lott’s skin. The this is not the standard stated Justice petitioner emphasizes that no make-up was above.”). quotation Stevens in the support speculation ever found to the that have Lott his skin of a dis- reasonable factfinder would found lightened offense,” unlikely. that seems How- guise. agree of the [him] ever, 80-year-old man the victim was initially- floor, attack, evidence, under even who was on the suppressed which boils down to a fire, observed tone, on when he his assailant. skin contradiction over false light perception skin Therefore statement of the oil origin about the used case, In any been inaccurate. this victim, have to burn cannot the also reach the discrepancy cannot only remains the in Schlup standard enunciated v. Delo: by no readily explained; be stretch “the show petitioner [must] habeas that ‘a could one assert that no rea- imagination probably violation has re- convicted, factfinder would sonable have sulted the conviction of one who is actu- even had that contradiction been ally ... innocent.’ To establish the requi- record. probability, site must show it likely is more than not that no argues

Lott his brief that McGrath juror reasonable would have convicted him identify Lott not able from in the Schlup of the new evidence.” reports Police composite sketch. indicate 298, 327, v. Delo 513 U.S. S.Ct. was not coherent at time McGrath (1995) (citation omitted). 130 L.Ed.2d 808 sketch, asleep he fell in the was shown 390, 417, See Herrera v. Collins 506 U.S. interview, and in fact died a middle of 113 S.Ct. hardly few hours later. It can said that be (“[T]he threshold for such an as- the discrepancy compelling is so that no right if actually sumed to be executed [not would reasonable factfinder convict based necessarily innocent] would evidence, extraordi- on all other trial not to men- narily high.”). Lott has not made a prima tion confession suppressed which must facie case of actual innocence nor shown assessing an actual inno- weighed that a constitutional violation is the cause cence claim. Therefore, of his conviction. this Kerosene Oil grounds has no on which to consider his in his emphasizes dissent respectfully case further. from prosecutor lied at his trial he told when file a new permission habe- the judges that McGrath did not own an oil stay petition, and the attendant of exe- that Lott must have lamp brought apparently cution. also dissent from our him, oil McGrath with used to burn show- despite limitless mat- stay of execution murder the his intent to victim. activity in being ter’s remitted to the dis- origin oil is immaterial trict court. Assuming claim of actual innocence. oil, it McGrath owned the was available to it in who used his attack on the argument

victim. this an Were about

prosecutorial penalty misconduct trial,

phase capital would see context, I

relevance. In this cannot draw

any from the oil that inference indicates

Lott’s innocence. require-

Lott has fallen far short of the producing

ment of “clear and

Case Details

Case Name: In Re Gregory Lott, Movant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 22, 2004

Citation: 366 F.3d 431

Docket Number: 04-3462

Court Abbreviation: 6th Cir.