In re Lott
- Reporters:
- Before:
- Boggs, Merritt, Cole
The petitioner, Lott, scheduled to be executed April 27, 2004, in Ohio, has applied for an Order under
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 cоurt 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 1255579 (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 dеciding 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 impоsed 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
A “prima facie showing,” as Judge Posner pointed out for the Seventh Circuit, is not a diffiсult 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 reinforсed by
We conclude that this leniеnt prima facie standard is met and that the matter should be adjudicated. Lott has made a prima facie showing through documents that the prosecutor
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 exeсution 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 exercisе 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.
Lott briefed his Brady and actual innocence claims in his first appeal of the habeas denial to this cоurt. Appellant Br., Lott v. Coyle, No. 99-4155, at 32 (Brady), 44 (actual innocence). Therefore, under
We also could consider his actual innocence claim in 2001, did so, and expounded upon it at length in dicta. We ultimately decided that we could not reach an adequate conclusion because of insufficient evidence in the record about a confession that Lott had made, which was suppressed because of a Miranda violation. Id. at 620-21. We simply declined to decide whether Lott‘s confession would preclude an actuаl innocence claim; we did not conclude that the claim itself was beyond our purview. Id. at 621 (“Since this issue may now be pending in state court and has not been fully briefed before us, we reach no final conclusion regarding the
If we truly did “not reach the constitutional merits” of Lott‘s actual innocence claim, the court‘s theory creates a clear mechanism for an end-run around the high bar of
For instance, the majority never really says that Lott met the due diligence standard of
Lott has made no showing of a new rule of constitutional law, and therefore
Although Lott argues that his actual innocence claim is predicated on evidence that the prosecution withheld and was not available to the three-judge panel that convicted and sentenced him, the evidence came to light in 1991. Lott has had procedural difficulties getting the evidence before the courts, because his initial appellate lawyer chose not to introduce it. However, the standard here is evidence that “could not” have been discovered with due diligence. Not only could the evidence here havе been discovered, it was. Clause (b)(2)(B)(i) is not satisfied.
In sum, we are presented with a petition for successive habeas that does not meet the criteria of the statute governing
Even if I could be persuaded to ignore the statute, I can see no interpretation of the evidence in question that 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.”
Prosecutorial misconduct is a separate issue and cannot be used to bolster a weak claim of actual innocence. Such misconduct can constitute the prerequisite constitutional violation for a claim for relief under Schlup v. Delo, but the petitioner cannot rely on that malfeasance to build an inference of actual innocеnce. Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that a petitioner asserting actual innocence must “support his allegations of constitutional error
I will address briefly the evidentiary claims that Lott claims entitles him to bring a second habeas petition.
Discrepancies in Description
The victim wаs able to describe his assailant as an African-American man with long hair, a medium build, light skin, who wore a light-colored shirt, grayish tennis shoes, and a cap without a bill. When Lott was arrested, he had short hair and medium to dark skin tone. Since two weeks had passed between the assault and Lott‘s arrest, he had ample opportunity to cut his hair; in fact, his hair is so short in the photo taken when he was booked that one could easily conclude that he had very recently visited his barber. The police found tennis shoes matching the victim‘s description in Lott‘s car. A sole print at the crime scene is at least consistent with that shoe, although not a confirmed match. The victim said his assailant was 5’ 10“; Lott is 6 feet. I find that a remarkably good guess, given McGrath‘s vantage point: tied up on the floor.
That leaves only the diffеrence of opinion between the shade of Lott‘s skin. The petitioner emphasizes that no make-up was ever found to support the speculation that Lott lightened his skin as part of a disguise. I agree that seems unlikely. However, the victim was an 80-year-old man who was on the floor, under attack, even on fire, when he observed his assailant. Therefore his perception of light skin may hаve been inaccurate. In any case, this remains the only discrepancy that cannot be readily explained; by no stretch of the imagination could one assert that no reasonable factfinder would have convicted, even had that contradiction been in the record.
Lott argues in his brief that McGrath was not able to identify Lott from the composite sketch. Police reports indicate that McGrath was not coherent at the time he was shown the sketch, fell asleep in the middle of the interview,
Kerosene Oil
Lott emphasizes in his petition that the prosecutor lied at his trial when he told the judges that McGrath did not own an oil lamp and that Lott must have brought the oil used to burn McGrath with him, showing his intent to murder the victim. The origin of the oil is immaterial to Lott‘s claim of actual innocence. Assuming that McGrath owned the oil, it was available to Lott, who used it in his attack on the victim. Were this an argument about prosecutorial misconduct in the penalty phase of a capital trial, I would see the relevance. In this context, I cannot draw any inference from the oil that indicates Lott‘s innocence.
Lott has fallen far short of the requirement of producing “clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.”
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
Clerk
Notes
Part of the prima facie case offered on this point is found on page 1 of Lott‘s application, as follows:
Mr. Lott‘s trial prosecutor, Carmen Marino, has a shameful track record of breaking rules to win convictions. See State v. Liberatore, 69 Ohio St. 2d 583, 589-90 (1982) (“the prosecutorial blunders in this case are too extensive to be excused.“); State v. Owensby, 1985 Ohio App. LEXIS 7351, *3 (1985) (“prosecutor‘s comments clearly outside the bounds of mere ‘earnestness and vigor[.]‘“); State v. Heinish, 1988 Ohio App. LEXIS 3644, *20 (1988) (“Clearly the prosecutor improperly commented on excluded evidence.“); State v. Harris, 1990 Ohio App. LEXIS 5451 (1990) (prosecutorial misconduct found, but harmless); State v. Hedrick, 1990 Ohio App. LEXIS 5647 (1990) (prosecutorial misconduct by making improper