In Re: John W. Byrd, Jr. Movant

about argument is no room for There in active service judges all of the

whether They banc court. of the members en

are 46(c). In this cir-

are. See 28 U.S.C. judges however, of those

cuit, only some requests notice of to have permitted

are and to vote

made to the en banc requests.

those purported from

I write dissent opportunity no given I because was

order stay, and I for the request

to vote on procedure to either party not be

will precedent it or the produced court are of this the members

some of to set.

attempting Jr., BYRD, Movant.

In re John W.

No. 01-3927. Appeals,

United States Circuit.

Sixth 9, 2001.

Oct.

ORDER regular judges A the court have active service voted development this matter for remand sua a factual record sufficient for leave consideration of sponte a writ of habe petition for file a second jurisdictional basis corpus. is Triestman (2d States, Cir. 1997); Hopkins, Krimmel Cir.1995). institutions, development The remand the rections or its relating ancillary in of a factual record is nature to this matter. the writ of habeas cor further direct pro- We that this matter majority A the pus. judges of active an expedited Magis- ceed on basis with the decided that a factual basis does not exist Judge submitting report trate with factu- sufficient to the en banc court to findings al and recommendations to the en entertain the Petitioner’s for a days banc court within 45 from date filing. successive We therefore issue this appointment Magistrate Judge. remand, directed to Judge the Chief be, IT IS ORDERED that the matter District of appoint Southern Ohio for hereby and it Magis- remanded. The Magistrate Judge promptly ment of a Judge report findings trate shall factual appropriate conduct an hearing. factual court, jurisdiction which retains in the hearing should develop record matter. regard to John claim of inno- IT FURTHER IS ORDERED that the presented cence to the Ohio courts but on stay currently of execution in place remain testimony

which no of witnesses or evi- force, pending further order of this dence taken. We direct court. scope inquiry by of the factual conducted the Magistrate Judge shall include testi- JONES, Judge, concurring Circuit mony relating to matters set forth in the Remand, the Order of in which Brewer, Cahill, affidavits John Dan Dar- DAUGHTREY, COLE, CLAY, and Circuit Messer, ryl Roger Hall and Benny Fields. Judges, join. addition, In inquiry factual shall in- gentle The most characterization I can clude, to, but is not limited an examination offer of the Judge Boggs dissents of of the following: Judge they Suhrheinrieh is that constitute prepared 1. Documents by the Hamil- exegesis a fanciful that bears little rela- County ton Prosecutor’s Office tionship to the facts of this case or the County Hamilton Sheriffs and/or requirements of the law. Each dissenter Department authorizing, directing accuses the en banc of “lawless” Armstead, or identifying Ronald Vir- actions or of acting without a lawful basis. Jordan, gil Marvin Randolph and Accordingly, though even I am not a mem- questioned Robert Jones to be court, ber of the en banc as is true of relating matters to the issue of inno- Suhrheinrieh, Judge with no vote on the cence raised this matter. hand, issue at as is also true of Judge 2. Documents prepared or received n Suhrheinrieh, I am nevertheless compelled County the Hamilton Prosecutor’s response write this to correct state- County office or Hamilton Sheriffs impressions conveyed ments and by the Department or Cincinnati Police De- dissents. partment relating to Ronald Arm- incarceration, testimony stead’s A reference to a statement in Judge parole hearing revocation and dispo- Suhrheinrich’s point. dissent illustrates the sition. date, It states: “To Judge Jones has not reports Documents or received written a dissent legal that sets forth his Attorney General’s office or reasoning.” Byrd, In re No. or- County remand, Hamilton Prosecutor’s office der at 596 Cir. Oct. 2001) Department (Suhrheinrieh, from the Ohio of Cor- dissenting). J. Such convey impres- lays then charge requirements is intended to out various reacting to petitioner satisfy sion that the en banc must before the court dissent, my certify did so without the benefit of can the second or peti- successive fact, I If opinion. petitioner written circulated to tion.2 satisfy is unable to AEDPA, twenty-six page statutory the full en banc court a the requirements of the forth, in dissenting-opinion, that set a com- the court of appeals may yet authorize a manner, prehensive legal justification the second or filing successive if the court for the action the en banc court decided to necessary deems that this is to prevent a I of part opin- miscarriage justice.3 take. should note that the of There is no dis- lengthy agreement ion included a discussion of the on the court that Petitioner jurisdictional basis for the court’s actions. satisfy does not the statutory filing dissents, light However, In of the I reiterate the requirements of the AEDPA. a my of portion majority judges dissent relates to the of in active service have jurisdiction agreed of the court to remand this that the court is without an ade- record, develop case order to a factual factual quate record to determine whether record the state courts refused to make. filing second is warranted under the miscarriage justice exception. of There- Notwithstanding the obfuscation and fore, majority of the en banc court has manipulation of the issues the dissen- remanded the a hearing case for on the ters, compelled what the en banc court to evidence supporting Byrd’s claim that he is simple. issue the of Remand is Order entitled to file a second under the petitioner When a habeas to file in wishes statutory exception. the district court a second or successive requires AEDPA that he presented to this court the Brewer, obtain the accomplice, first authorization from federal confession of an John therefore, appeals.1 Brewer, court of Congress, Byrd, that it was who mur- appeals statutory duty vests in the court a Tewksbury. dered Monte of Order to determine whether to authorize a sec- compelled by Remand was the fact that a apple. ond bite at the habeas The statute of judges, comparing active the previously 1. The statute "Before a reads: suc- that was unavailable.” 28 U.S.C. application permitted by 2244(2)(A) (B). cessive this section § & applicant is filed in the district the shall appropriate appeals move in the court of innocence/miscarriage justice 3.The actual authorizing an order the district court to con- Delo, exception Schlup is articulated application.” sider U.S.C. 130 L.Ed.2d 808 2244(b)(3)(A). (1995), prison- in which the held court satisfy filing require- er AEDPA who fails to provides 2. The statute further that: "The petition "may ments for a successive habeas appeals may filing court of authorize obtain review of his constitutional claims application only second or successive if if he falls ... within ‘narrow class of cases application pri- that the determines makes implicating miscarriage jus- a fundamental showing application ma facie that the satisfies 314-15, tice.’” Id. at 115 S.Ct. 851. See requirements of this subsection.” also, Zant, McCleskey v. 2244(b)(3)(C). Specifically, peti- U.S.C. (1991), holding tioner’s claim shall be dismissed under cause, petitioner “[i]f cannot show 2244(b) unless he demonstrates that his failure to raise the claim in an earlier previ- claim “could not have been discovered may nonetheless be excused if he or she can ously through diligence,” the exercise of due miscarriage jus- that a show fundamental or that the claim on a new rule “relies law, tice would result from the failure to entertain constitutional made retroactive to cases Court, on collateral review the claim.” 111 S.Ct. 1454. Id. en banc.5 supporting rehearing Nevertheless, statements in the confession to record, agree in the evi- authority facts this AEDPA did not alter the en banc potentially dence of actual innocence satis- court order a on its justice Triestman miscarriage exception fies the own motion. States, (2d likely Cir.1997), warrants a second ac- F.3d 361 impediment tion. The to the court so rul- Second Circuit observed that the federal ing appeals was the fact that the Ohio courts have courts of retain power to order sponte. repeatedly every request refused for dis- a rehearing covery evidentiary hearing and an on the “[Notwithstanding the restrictions on Obviously, Brewer confession.4 the lack of appealability 2244(b)(3)(E), a factual record on potentially such excul- authority has the to order a re- patory impediment evidence was no for the hearing sponte. sua It is well-estab- panel majority. panel, my The over dis- appeals lished that a court of is entitled sent, wrongly Byrd’s request refused for prior both to reconsider a decision sua authorization to a peti- file second habeas ... sponte and to order a rehearing sua tion, turning eye gaps blind to serious in (citations omitted). sponte By mandat- centerpiece the record. The of the dis- ing that the initial decision of the court sents Order of Remand is the argu- appeals subject of ‘shall not be the ment that the en powerless banc court was petition rehearing’ for in (emphasis orig- rehearing to order a to correct panel’s the 2244(b)(3)(E) inal), § provides only that erroneous decision. disappointed litigant may not ask the court to reconsider its certification deci-

The view that the en banc court lacked terms, By plain sion. its it does not jurisdiction to panel majori- consider the purport to limit the power court’s own ty’s adverse decision reads into the AED- review its decisions or to undertake a PA a meaning plain the text of the statute rehearing.” support. does not prohibits The statute an authorization Id. at 367. being dissent, decision from “the sub- In Judge Boggs ar- ject a petition of for rehearing.” gues 28 U.S.C. that notwithstanding the emphatic 2244(b)(3)(E). court, § King, Triestman, In re This language of the court in the (6th Cir.1999) 190 F.3d 479 extended the case point is not on because it involved a reach of the preclude only statute to sua order a three-judge panel petitions than, for but petitions case, also rather in Byrd’s the full en statement, my that, In circulated to the full en possession, once it Byrd was in his court, banc I set why every attempt forth the reasons Peti- made to come forward with his i.e., innocence, evidentiary tioner is entitled to an evidence hear- of actual the Brewer confession, 2254(e)(2). ing post-conviction under provides pro- That section his state ceedings. applicant The record is develop "[i]f the clear: state trial failed to appellate every courts refused the factual basis of a re- claim in State court quest discovery evidentiary proceedings, an hear- the court shall not hold evi- ing on his claim of actual innocence. dentiary hearing” prisoner unless meets statutory exceptions. various 5. Specifically, the court held that "once a Again, I observe that the references to evi- grants of this court or denies an indi- dence withheld from his first federal permission vidual file second or succes- petition, they explain while serve to sive district why he cannot show 2244(b)(3)(E) cause for abuse of the prohibits any party from seek- writ, unimportant purposes decision, are ing for the panel’s further review of the hearing whether he is entitled to a original under from the either or from the en 2254(e)(2). all-important The observation King, banc court.” In re 190 F.3d at 479. 2244(b) sure, does not or- To Byrd, No. In re court. remand, for rehear- the court to entertain der of Cir.2001) Remark- dissenting). (Boggs, guise acting J. ing en banc under , a basis on hardly fact is This question is whether sponte. able! Rather, the fact distinguish Triestman. court, though purports sponte, to act sua judges agrees active the merits of the second habeas entertains necessary serves rehearing is some grant If the court were to the court acts the fact that reinforce relief take form of substantive habeas within law. completely on the of new claims or other action basis not alone Circuit is The Second in the evidence the statute. interpretation by granting court would subvert AEDPA (1997), Lorentsen, F.3d 278 States v. claims that failed to relief on the basis of the view of the adopted Ninth Circuit 2244(b)(2). §of satisfy requirements that AEDPA King articulated statute Calderon, held that this is The Court rehearing en banc. One petitions bars impermissible. later, decided the Ninth Circuit year claims or the court new “[If] considers Calderon, Thompson ap- a successive presented evidence in (1998), followed the in which the court relief, proper it is plication language [of analysis that “the Triestman court’s action as based on regard the 2244(b)(3)(E)] preclude does not § cases, these application. [AED- In It an banc court. review en sponte of whether the applies irrespective PA] seeking from parties the merely precludes the action as sua The Ninth Cir court characterizes rehearing.” Id. at 922. a added) rejecting the flawed difficulty (emphasis sponte.” had no cuit Nei in dissents. analysis advocated outset, At the Id. at 118 S.Ct. 1489. on this judges of did a active ther logical way one can simply there is no Indeed, Supreme even court. 2244(b)(3)(A) § request think of the when in acknowledged this distinction has applica- a successive itself as authorization of the stat analogous section terpreting Nevertheless, tion for habeas relief. in The Calderon ute. just to do that. Judge Boggs manages Thompson, 523 U.S. dissent, Judge Boggs writes his (1998), the lan examined 140 L.Ed.2d that does not filed a document “[Byrd] 2244(b) § the author limits guage ha- being a or successive admit to second to entertain abu ity of the federal courts it was.” In re The ruled that beas. The Court petitions.6 sive or successive remand, No. Byrd, order the view that the hesitate to affirm did not (6th Cir.2001) (Boggs, J. dis- at 594 authority to hear retain courts federal No, decid- it did not. senting). applications sua abusive or successive even treat Peti- appropriate to ed that it was 2244(b) matter, § “As a textual sponte. Determine Byrd’s [to] “Motion tioner pursuant only where the court acts applies in His Applies § Calderon, 2244 of AEDPA Whether application.” prisoner’s ato file a for leave to request as a 554, 118 Case” 1489. at S.Ct. U.S. presented second or successive 2244(b)(1) claim in a provides: pre- "A claim "A Section was not 2254 that application under section habeas cor- or successive sented in second be dis- prior application shall presented in a that was pus application under section appli- exceptions are unless various be dis- missed” presented prior application shall 2244(b). Likewise, 2244(b)(2) 28 U.S.C. provides: cable. missed.” pass in the district court.7 er must to have his otherwise barred second properly identify Judge Boggs’ failure to constitutional claim heard on the merits.” critically the court is the motion before Delo, Schlup v. teaches, because,

important as Calderon (1995), i.e., it func- the lawfulness of the court’s sua justice satisfy miscarriage tions to order turns on whether the Order of Re- exception filing require- to the AEDPA mand was based on new claims or evi- ments. The court does not act on the in Byrd’s dence second habeas substantive merits of claims the habeas That the remand does not rest on therefore, the Order of Remand is action is obvious from the consistent with the rule Calderon. that, simple present, fact leave file a granted second habeas I conclude with one final observation result, petition. As none of the substan- points key raised the dissents. The relief, tive including claims for habeas to understanding legitimacy of the Or- claim regarding Byrd’s Massiah Sixth cognizant der of Remand is to remain counsel, right Brady Amendment the two roles the court must fulfill under regarding claim the deliberate use of false generally. AEDPA and habeas matters him, against evidence and a claim of inef- AEDPA, Congress With for the creates counsel, proper- fective assistance of were statutory court a duty to refuse or 2244(b)(3)(A). ly before the court under filing petitions successive habeas so, eye might Even a keen observe the district courts. Whether the court has Byrd’s evidence of actual innocence forms properly discharged duty its under AED- basis of both his for authoriza- hotly PA among remains contested issue 2244(b)(3)(A) tion under and the actual some members of the court. I submit that habeas he seeks to file. It is just and lawful course of action in this affidavits, indeed true that the Brewer in involving Byrd case Petitioner in- becomes murder, which Brewer confesses creasingly clear when the court is mindful appear instruments, in both and the en that its duties under AEDPA designed are banc court well impor- did to consider the to larger responsibili- facilitate court’s tance of the confession as a basis for the ty to see to it that the rights of citizens However, Order Remand. the remand under the Federal Constitution are not remains on the safe side of the distinction in disparaged state criminal proceedings. drawn in Calderon because in the request Were dissenters mindful of this basic authorization, for the actual innocence role of the federal courts in habeas mat- claim does not a function like substantive ters, they would with be uncomfortable Collins, claim for relief as in Herrera v. been, fact that the 853, every Petitioner has 122 L.Ed.2d (1993).8 turn, Instead, refused an in opportunity it functions to test “gateway through petition- open which a habeas what a of active Order, September 7. In its 2001 Revised functions as a substantive constitutional claim cast, panel majority states "[h]owever for habeas relief. The Court noted that "in a seeking permission required is by capital truly persuasive case a demonstration 2244(b)(3)(A) U.S.C. to file second habeas of 'actual innocence1 made after trial would petition.” September Order filed 2001 in render execution of defendant unconsti- Case No. n. 1. tutional, and warrant federal habeas relief if open process there were no state avenue to recognized The in Herrera prisoner's that a claim of actual innocence such a claim.” Id. at 113 S.Ct. 853. judges discharge of active on this court to potentially is agrees this court judges on fullest. actual innocence. these duties to the evidence of exculpatory the dissenters is from response COLE, in Judge, concurring Circuit and forth between back shuttled Remand, JONES, Order eigh- courts for some and federal the state CLAY, DAUGHTREY, MOORE, and disagreement on There is no years. teen join. Judges, Circuit But, this fact is that he has. the court I of this concur the decision explains why it only insofar as important in hold join the Second and Ninth Circuits failing unable to show cause Byrd is authority to ing that an en banc court’s in his claim of actual innocence raise his sponte vacate sua the decision of a three- It means first federal judge panel precluded by is not the Anti- respect to whether the Brew- nothing with Penalty and Effective Death Act terrorism of ac- persuasive evidence er confession (“AEDPA”). Triestman v. Byrd to a innocence that would entitle tual (2nd States, his claim for opportunity to make Cir.1997)(“[N]otwithstanding the restric relief. The state courts of Ohio 2244(b)(3)(E), §in appealability tions on bring all interest- opportunity wasted an authority to order a this court has the finality parties closer to fairness ed Thompson v. sponte”); sua Cal hand and by refusing matter out of (9th Cir.1998)(en deron, Byrd’s request justifiable no rationale 2244(b)(3)(E) banc)(“the language [of ] hearing specific on this discovery and review an preclude does not with the agrees claim. The en banc court merely precludes en banc court. It Parke, in Burris v. 116 F.3d 256 view seeking rehearing.”) For parties from Cir.1997) circumstances, these below, this Court’s the reasons set forth court does well when refuses federal entirely consistent with the decision is rubber-stamp inadequate proceedings such aims, text, and consti statutory legislative court on a habeas claim. Oth- the state AEDPA. tutional boundaries of erwise, decisions “a state could insulate its attack in federal court from collateral A. grant evidentiary hearings

refusing to Id. at 259. its own courts.” AEDPA, portions, pro- in its relevant grant or denial of Judge of vides that Notwithstanding “[t]he the assertion Suhrheinrich, appeals court of to file a more authorization the en banc court is no application shall not second or successive obstructing imposi- in the lawful interested subject and shall not be the appealable in penalty of the death this Circuit tion or for a writ of rehearing in of a for Judge curtailing than is Suhrheinrich 2244(b)(3)(E)(em- § in certiorari.” 28 U.S.C. petitioners the fed- rights of added). clearly While this section Byrd, phasis In re No. eral courts. (6th re- remand, requesting from prohibits petitioner at 596 Cir. Oct. order of 2001) (Suhrheinrich, in text bars a federal hearing, nothing its dissenting). J. We en rehearing a matter differ, appellate court from apparently, regard with upon its own motion. See Calderon necessary are to fulfill our banc means that 538, 554, 118 523 U.S. Thompson, statutory responsibilities and constitutional (1998)(“As a textual entertaining a habeas as a federal court 2244(b) matter, only § where applies of Remand reflects the matter. The Order ‘appli- prisoner’s to a pursuant court acts part on the of a manifest resolve cation’1.”) Thus, that peti- charged ensuring bars we are the statute rehearing, rehearing per petitions not se. are ac- potentially tions for meritorious Indeed, any absence of conspicuous By acting review. on its own mo- corded in rehearings this banc, reference to en banc en this has not thwarted tion other opposed as sections section gatekeeping purpose. this We have not AEDPA, 2266(b)(5)(B)©, § e.g. 28 U.S.C. petitions on the entertained successive provides support further for the notion part petitioner this case and the rehearing sponte that en banc sua is not underlying purposes behind section section. Rodri- contemplated by this See remain unscathed. States, guez v. authority This Court’s to act on its own 1391, 94 L.Ed.2d 107 S.Ct. precluded by motion is also not our deci (1987)(“Where Congress particu- includes King, sion In Re 190 F.3d 479 but language lar one section statute Cir.1999)(en banc). There, this held Act, omits it another section of the same petitioner’s that motion under presumed Congress generally is 2244(b)(3)(A) rehearing by an en intentionally purposely acts its con- is barred under clusion.”)(internal omitted); quotations 2244(b)(3)(E). Id. at 482. The Court Hertz, Liebman and Federal Habeas also petitioner’s concluded that motion could Procedure Corpus Practice and 28.3d not be reheard en banc as a matter of fn. 119. a matter 1194-5 As of AEDPA’s statutory language legisla AEDPA’s text, appellate the decision of a federal 2244(b)(3)(E) intent, clearly prohib tive grant court to a ‘petition rehearing’ its and because clearly prohibited by not the statute. purpose statute is to limit re Moreover, en banc review this Court quests by petitioners. for review Id. The on its own motion is also consistent with decision, however, King crux of the was AEDPA. primary aims of The Su- three-judge the decision of the Court, preme upholding constitu- banc, panel could not be reheard en but AEDPA, tionality of has construed the petitioner precluded rather 2244(b) requirements “gatek- to be a requesting rehearing. from such Id. feature, eeping” prohibits one which suc- Here, there is no of this kind cessive, baseless, potentially applications Instead, before the Court. we are vacat

by petitioners. Turpin, Felker v. 518 ing our decision of own accord. 651, 656-57, (1996)(28 L.Ed.2d 827 2244 “con- U.S.C. B. second or cernís] successive habeas cor- pus applications by prisoners.”) Any state AEDPA reading precludes against ability The statute thus is directed this to review en Court’s banc deci- petitioners of assigns three-judge panel unduly actions and sions of a would Court the role of gatekeeper against peti- upon procedures encroach the internal of tioners’ petitions. simply, power successive Put this Court. The of an en banc court ing pursuant authority 1. The statute makes a distinction between an to its to rehear matters “application” sponte. Regardless, pres- and a "motion.” See 28 U.S.C. en banc sua there 2244(b)(3)(A) Court; § ently application and 28 U.S.C. no before this we are 2244(b)(3)(E). § "application” vacating three-judge panel An is essen- the decision of the tially corpus petition. upon a habeas See Liebman based Petitioner’s motion under Hertz, 2244(b)(3)(A), Corpus seeking § Federal Practice Pro- authorization to file a Here, § cedure 28.3d Court is act- successive habeas

593 sponte. Advisory See Committee decisions sua sua panel its own to review (Rule function as a to F.R.A.P. Rule 35 de- 651, 660, 116 Turpin, Felker v. 518 U.S. sarily in the internal administration of (1996)(Con- 2333, Moreover, S.Ct. 135 L.Ed.2d 827 Congress Appeal.”) Courts of remove the gress may not Court’s interfering in avoided with particular eYerger, Ex Part power implicitly); to rehear matters power an en banc court’s 85, 105, 2254 and 85, 332 on habeas contained Section 19 L.Ed. Wall. 75 U.S. AEDPA, (1868)(same). writ Here, leaving only original has not ex- Congress as the ave ability Supreme of a federal habeas to the Court removed plicitly panel may en banc a not be “great court to review nue of the writ” appellate thus is to sponte. power suspended, except This cases of insurrection. decision unfettered, 662-65, 116 properly and has been 2333. remain Id. at S.Ct. by this Court. exercised So, finality, prisoner must to avoid reasons, I concur foregoing For the gives It him a full follow Section the en banc order of this Court. hearing. Byrd fair has had and that, court from 1994 to 2000. This con- BOGGS, Judge, dissenting, Circuit matter, opinion, sidered the issued an and which SUHRHEINRICH subject opinion was to a for en BATCHELDER, Judges, join. Circuit rehearing, though narrowly, and Collins, v. Byrd Byrd did not succeed. very Although some have attacked the denied, 486, No. 96- litiga- referring penalty notion of to death (6th 3202, en amended banc order Cir. game, involving tion as characteristics 2000). Supreme The de- Aug. rules, tactics, moves, and see with O’Guinn Collins, nied certiorari. v. 531 U.S. Dutton, n. 1 v. 148 L.Ed.2d 682 Cir.1996) (Merritt, concurring), J. (2001). study used in the broad definitions legal courses on the “game theory,” and point, system clearly gives At that subject, certainly apply. The condemned two, two, may him options. He allowing

in almost all cases seeks to avoid to file a permission move this court a condition of legal system to reach granted second or successive habeas. If very strong value that finality, despite the permission, he files his habeas in dis- has, penalty in a death case. finality even proceeds. trict court and If his motion is Zant, 467, 492, McCleskey See v. denied, subject the denial is not to rehear- (1991). 111 S.Ct. Or, if ing. pre- he contends that under always finality— The state almost seeks permis- AEDPA law he does not need such in carrying either it will succeed out the sion, he can file a habeas in district system, or it legal mandates of the state agrees and see if the district court can at to some other case. least move on case, him. In either case continues finality. Byrd the road to has chosen to good. system provides All The well and do neither. He filed document that does many pathways appeal, reconsideration being admit to successive federal low- contemplation. But when habeas. The ruled that it was. involved, under current stat- er courts are utes, Court, Supreme it all upheld similar, In a possibly pre- somewhat statutory comes down to ha- Section 2254— AEDPA, case, filing Robert Coe’s dis- Turpin, corpus. beas See Felker competency trict court to raise a Ford 135 L.Ed.2d pre- issue was held to be also 28 U.S.C. AEDPA that the district was 2244(b)(3)(E). permitted to deal with. The district court promptly, system per- and ruled and the specifically Bell, unanimously upheld operate. scheme—in Felk- mitted to See Coe (6th Cir.2000). have upheld er v. all the restrictions F.3d 815 could Turpin decade, court, brought up if AED- for over a or now at thought he filed district minute, he didn’t. apply, persons PA doesn’t but the last when involved trial, fully were available to the defense at was to file a Byrd did instead What habeas, at state and at federal habeas and of the deni- en banc petition until brought never forth now. Nev- clearly permitted. al. This was not order, ertheless, an based this court issued Quite claim simply, the of actual inno- mem- not made known to some on motions cence, purposes, for habeas does not mean court, ordering of the advance bers judge differently that a would have ruled and submitted to petition such a be filed jury; had he been on the or on the state September filed the court. See Order bench; or on the state or federal habeas F.3d 561. 2001 in No. Case courts; particular to that a has mean filed, and submitted to petition Such a was standard, set in the legal down statutes At of a member of request the court. uphold, and cases we are sworn to granting of the en panel, poll on the Collins, been met. See Herrera v. ordered, voting banc was 390, 400-01, 853, 122 Sept. ballot issued on 27. L.Ed.2d 203 However, proposi- September on variety ways There are a court asked to vote tion on which the was attempted to those pursue could have is- to changed, apparently, be chosen sues under the rules. He has not the en “to determine whether to. ” shall, re-hear the action of not every one of those avenues leads to For for a sec- grant permission Instead, he, finality. approval with the petition, but ond or successive habeas court, un- procedure this has concocted a case to the district rather to “remand” the law, to where this court takes known development court “for the of a factual it, properly before control of matters to a consideration record sufficient they them to a court where “remands” petition.” a second A to file been, that the have never and commands judges of the court active court, in returned to this matters then be supported proposition. have now this This then, so, only for this to days to action has no conceivable connection permission whether to file sec- consider whatsoever. jurisprudence, Section 2254 full granted by ond habeas should Indeed, Byrd perhaps gives game court. he away filing in his most recent where Subsequent voting the close of the ap- states that “this Court sits less as above, supra p. see proposition court and more as a fact-finder on the stated pellate very exten- prepared claim.” “Motion the court has the actual innocence order of “remand” that adds to Requesting For Leave to File a Motion sive astonishing irregularities Special Referral of His Case to a Master series First, 48,” case. the cited Septem- FRAP filed have occurred Pursuant to provide Krimmel were never of Triestman and ber 2001. Truer words cases ability for the of the entire accurately support nor words that more no spoken, the actions of a failing apply the court is court to “rehear” represent how (and permission a motion for appar- respect wants us Section a second or successive habeas ently majority agrees) of the court to be file States, 124 fact-finding process, in a as to See Triestman involved (2d Cir.1997); Hopkins, from the court Krimmel willfully matters withheld Cir.1995). point; question in- this the answer to that will Neither case all; event, both involved a await the should such a the full court at have to volved of its own rehearing by panel a decisions. be filed. is certain is What a that, and involved pre-AEDPA Krimmel- was if path per- have embarked on a we a denial of a first appeal mitted, conventional ability every appel- for creates noted that specifically habeas. Triestman explode every panel late and full court to requires that “a second or succes- by apparently thought, limitation both ... a must be certified Court, sive habeas Congress Supreme and the to be panel appropriate appeals.” of the court of AEDPA. contained within Triestman, (emphasis 124 F.3d at 365 add- lawless, and I The court’s actions are 2255). ed) (quoting 28 U.S.C. respectfully therefore dissent. obviously is not the case here. This

Next, purported the court’s “remand” is SUHRHEINRICH, Judge, Circuit “ancillary petition for a writ of Remand, dissenting from the Order peti- there is no corpus,” because BATCHELDER, Judge, Circuit grants per- tion until a of this court joins. it mission to file it—-when would be filed case, majori- twist in a the latest this order the district court. What court’s ty En Banc now to Court has voted neatly does is avoid the conventional habe- remand this case “for the court,, jurisdiction of the where as district a development of factual record sufficient permitted a if and when to such to a consideration of a to filed, judge be would be directed to the corpus petition,” file a second habeas a peti-

who has dealt with the earlier habeas “procedure” which is not found in the by Byrd, tion or would be dealt with other- procedure AEDPA. While that is without In- according wise to local court rules. legal support, the En Banc contin- Court stead, grants Byrd’s our court effect ues what this writer feels is a lawless special undealt-with motion for a master. course of action. particular judge If we can direct a federal important It is that we retrace particular type of official to several appoint us, put predica critical us in just easily appoint steps advise we could dean, First, ment. on evening September law school the UN Commission on 10, 2001, Amnesty by majori Human or Rights, International there is secret vote proceeding. ty to conduct such a the En Banc grant Judge Court to days to thirty prepare Jones dissent statutes, Finally, under the we are sim- denying Byrd the original decision ply to do with a anything not authorized permission to file a second habeas file a peti- motion to second or successive date, Judge To Jones has not written a it, grant deny tion other than to or it. We legal reasoning. dissent that sets forth his duty turn it cannot shirk over “fact-finding” others to conduct that we Next, September files apparently capacity deal with in some will banc, raising en juris- assigned other than that us our First, two issues: “Does the En Banc dictional statutes. jurisdiction pan- have to review the activity spun Byrd’s application This has so far out of the el’s denial of to file a Second, sequence may petition?” authorized that it even be second habeas “Assum- may ing pre-AEDPA Byrd pro- doubted whether the law applies, jurisdiction thought stay convincing to have at vided clear and evidence of his actual innocence such that his abuse of the affidavit of co-defendant John Brewer has writ be excused and he should be should been available since 1989 and has been petition?” file a These allowed to by hidden from the courts Byrd’s attor- answered, yet have not been nor questions neys. It hard to is determine the reason En any has there been indication behavior; for attorneys’ these unethical if going that it even to enter- Banc Court is “innocent,” Byrd indeed is why put the petition. tain the courts, state and the federal judiciary, in- Court, cluding the Supreme United States 26, 2001, Byrd a September On files through years litigation, presum- when a “Motion For Leave to File Motion Re- ably the En Bane Court would find him questing Special Referral of His Case to a Furthermore, innocent? why put Byrd Master Pursuant to FRAP 48.” It states through nearly eighteen years that “this of torment pertinent part Court sits less a appellate as court and more as fact- as to whether he will live or die? I think clear; is, finder on the actual innocence claim.” Not the answer is and that Byrd’s only Byrd’s attorney jump gun did attorney never thought anyone would motion, filing clairvoyant this but he is give a credence to criminal who testified majority because a of the En Banc Court oath, trial, way one under and then thereafter adopts suggestion his their way testified another in an affidavit. This sponte” “sua remand order. On Septem- innocence, Byrd’s does not prove it 27, 2001, at the request Judge ber proves that Brewer is a liar.1 Jones, granting for of the en poll The En Banc Court labels the “fact find made, petition and a voting was ballot was ing” “ancillary,” mission when indeed is 28, 2001, September issued. Judge On goes directly the essence of his claim and Jones files “clarification of his question Byrd of whether should be vote,” for en banc where he advocates that petition. allowed to file second habeas En Banc Court should “sua outrageous What makes this more is the remand the development for of a factual majority’s determination that the factual record sufficient consideration inquiry very should contain the relief that to file a second corpus Byrd’s attorneys failed to obtain his petition.” Byrd first federal habeas see of ruling Byrd’s petition Instead on for (6th Collins, Cir.2000), 209 F.3d 486 and rehearing openly assuming control of failed to incidentally, gain rehearing case, a majority October Court, by this En Banc who turned down agrees the En Banc Court to the sua Byrd’s request en banc. See sponte remand for fact finding. So as of Collins, F.3d amended en today, the En Banc Court has fired the (6th Cir.2000). banc order And the United sponte. and taken over this case sua States Court denied certiorari. time, they At adopted the same have Collins, Byrd v. See decision, dissent to there has 786, 148L.Ed.2d 682 none, they given been nor have the panel majority any guidance they as to how mis- The uncharted course of this case con- interpreted the law. in that the matter is sent not to the tinues Judge to whom majority makes no mention of the United States District fact that Byrd’s the so-called “actual innocence” first federal habeas Chambers, 1. See United States v. are viewed with extreme vils and witnesses Cir.1991) ("Recanting suspicion."). affida- orders, decisions previous All of the appointed Magistrate but to an assigned, Court, eighteen years of due will do En Banc one who Judge (presumably Court) yet En Banc who thrown out the bidding have been process procedure what window, named. Under En Banc to be and a of this En Banc Court rule of law allows finding a fact on the has ordered assignment the blind draw interfere with advocated his very thing Judge Jones Judge to States District of the United the denial of first fed- dissent from assigned?2 whom it was Collins, Byrd v. eral habeas (Jones, dissenting). J. 542-52 order, view, as I read their my more intel- again, it would be much Once publication, for after my I attach to dissent legal if this Court lectually honest hand-picked magis- finding by fact the the that this En Banc merely would indicate trate, three- not returned to the the case is the En Banc overruling past is Court instead is returned to panel, but member law of the case has no and that the court that Court members of nine-member five meaning. En majority of the Banc is the so-called En Banc I take it then Court.3 out-of-step clear that I am While grounds if there are for a will decide Court jurisprudence with the new Sixth might how petition. One wonder second Circuit, understanding and have no sleight-of-hand as the they pull off this law, my legal I to set down attempt will three-judge panel of the requires statute reasoning for the reader to see how out- to decide this issue. See appeals court of “injudicious” my legal interpre- moded and 2244(b)(3)(B). § that deci- And 28 U.S.C. I tation is. I will address what believe are See 28 U.S.C. nonappealable. sion is before the En properly the two issues 2244(b)(3)(E). § Banc Court. happened, any unlike What case ever to come before this corpus En The Banc Court Has Court, En Banc is that the Court will No Jurisdiction body but reviewing panel, act as a says: The statute panel itself. It would be will become grant The or denial of an authorization courageous, far far more intellectual- more or appeals a court of to file honest, hold ly if the En Banc Court would ap- shall not be application successive Circuit, policy matter of that the Sixth as subject to a pealable and shall not be uphold penalty. will not the death rehearing or for a writ of petition for unusual, and unprecedented, This entire certiorari. mind, my illegal process has all resulted 2244(b)(3)(E) add- (emphasis 28 U.S.C. Judge asking thirty-day from one for a ed). Byrd. As we observed the unanimous en extension the execution of John permits proce- going origi- what case statute 2. this matter is not back to the or If presumably panel, the En Banc Court nal dure. way. panel is tainted in some thinks the En Banc Court must also believe that Judge in the Order of If Jones’s concurrence well, Judge United States District is tainted as correct, would this matter not Remand is they assigned have the matter to the because original panel, come back to the or has the En Judge of Ohio Chief of the Southern District complete Ban taken control of the case appointment Magistrate Judge, there- there will be no three-member by taking away district the case from the provided for in the statute? judge who has this matter since handled again, 1994. Once there is no indication as Thus, King, King, decision of In re 190 F.3d at 480. banc under the (en (6th Cir.1999) banc), denied, cert. 2244(b)(3)(E) crystal language clear 146 L.Ed.2d unequivocal and the holding King5, we (2000), “[a]ny question on whether an jurisdiction Byrd’s do not have over peti- is available under rehearing en banc rehearing tion for en bane and 2244(b)(3)(E) provi is foreclosed should be dismissed. id. at 482.6 original panel’s decision ‘shall sion ”4 bar, get To around this obvious appealable.’ not be As we held argues that asking is not the Court “[he] decision, en unanimous permission peti- to file a second habeas grants once a of this court 2244(b) tion under of AEDPA. His peti- permission an individual to file a denies tion for en banc asks second or successive the dis- preliminary jurisdictional to decide the 2244(b)(3)(E) court, § prohibits any trict question of whether the AEDPA ap- even party seeking from further review of decision, plies to his case.” Petition for Re- panel’s original either from the Banc, from the en banc court. En 4.7 If hearing Byrd’s or at charae- 651, Turpin, 7.Implicit Byrd's argument 4. In v. 518 U.S. 116 S.Ct. Felker is the errone- 2333, (1996), assumption procedural 827 require- 135 L.Ed.2d ous that the requiring petitioner Court indicated that this limitation is consti- ments of AEDPA to Miller, Wright permission Appeals 17A & seek in the Court tutional. See also FED to file § (West.Supp.2001). petition subject retroactivity & PROC. 4267 a second are PRAC. to discussed, analysis. assump- As will be this flawed, proce- tion is because it confuses the pointed peti 5. It should also be out that the aspects dural and substantive of the AEDPA's King procedural tioner in was in an identical gatekeeping requirements. generally See posture Byrd: peti his first federal habeas States, (10th Daniels v. United 254 F.3d 1180 prior tion was filed in the district court (en Cir.2001) banc) AEDPA, (considering separately request enactment of and his for procedural the AEDPA’s and substantive as- permission petition to file a second habeas pects). § was filed under 2244 of the AEDPA. See In 479, (6th (en Cir.1999) King, re 190 F.3d 480 juris also claims that this Court has denied, 1041, banc), cert. 529 U.S. 120 S.Ct. question applica diction to resolve the of the 1538, (2000). 146 L.Ed.2d 352 In Workman bility support, of the he cites AEDPA. Bell, (6th Cir.2000) (en banc), v. 227 F.3d 331 Herbert, 97, (2d 100 Mancuso 166 1193, denied, 1194, cert. 531 U.S. 121 S.Ct. denied, 1026, Cir.), cert. 527 U.S. (2001), 149 L.Ed.2d 109 which addressed the (1999) proposi for the L.Ed.2d mandate, request we Workman's to recall our 2244(b)(3)(E) peti that "does not tion bar pointed out that we not undertaken to ”ha[d] juris tions that ask for reconsideration of the review” the denial of Workman’s question dictional of whether the AEDPAeven petition file second habeas in the district i.e., 2244(b)(3)(E) applies, gov while Section (citing distinguishing King). court. Id. and petitions they erns how are treated once are properly located within the AEDPA frame Furthermore, King, specifically we in- work, authority it does not restrict our over structed as follows: question the threshold of whether the AEDPA today, applies.” our decision of court Id. at 100. Given clerk context, any party petitions appears is directed to return to Taken out of Mancuso However, seeking rehearing support Byrd's position. or en in Mancu- so, challenge panel’s granting the court’s recall of the man- decision issue was 2244(b) appeals granted denying request under date. the court of had or to file After recalling petitioner’s request an order a second or successive writ of habeas cor- mandate, pus in the district court. the state moved for reconsidera- (6th Cir.1999) King, order and moved for an order In re 190 F.3d tion of that denied, (en banc), denying petitioner’s motion for recall of cert. Second Circuit held that the mandate. The 2244(b)(3)(A).8 already This Court correct, we lack issue is of the terization AEDPA’s second we concluded petition because over jurisdiction petition procedures apply to In other advisory opinion. successive cannot issue apply petition was words, does not the first habeas if the AEDPA cases in which See a new asserts, have filed Byrd should the AEDPA’s enactment. filed before (6th Cir.1998) have it Green, in the district In re petition 144 F.3d 384 Hanserd, successive, and then come to In re curiam); out as 123 F.3d thrown (per Cir.1997). In re for a determination See also appeal us on not do Cir.1999) He did apply. (3d AEDPA not Minarik, does 691, 599 Instead, that deter- he has filed for that. Landgraf and (“Based reading on our it, and is any basis mination without Lindh, appeals join other courts we two from us that advisory opinion asking for an unam- AEDPA contains no holding which would apply, the AEDPA does ap- retroactive guidance regarding biguous just file a new him to then or suc- AEDPA’s new ‘second plication of procedures standards cessive’ Thus, Deter- [to] if Motion “John 2244(b) the first habeas cases which 28 U.S.C. mine Whether enactment.”; AEDPA’s filed before anything, AEDPA to His Case” Applies Hanserd, Green, supra; supra; citing seeking permission it must be a motion Ortiz, a second United States appeals to file from the court generally Daniels v. (D.C.Cir.1998)).9 under 28 U.S.C. application corpus Court, his motion with this 8. Because he filed was not barred state’s motion 2244(b)(3)(E): applies, at that the AEDPA has conceded However, 2244(b)(3)(E) pro original char- procedurally. Section The while least petitions request reconsidera file a that seek motion as a hibits those acterized this underlying grant a or petition. tion of the merits second or successive petition, see Calderon v. of a habeas denial 1489, 538, U.S. 118 S.Ct. Thompson, 523 Circuit, Minarik, citing Han- the Third case, (1998) ("In § 2254 728 a 140 L.Ed.2d serd, argument rejected petitioner’s prisoner's to recall the mandate motion procedure subjecting found in him to the new underlying merits on the basis of of 2244(b)(3)(A) imper- of the AEDPA was an regarded as a second or decision can be application of the statute. missible retroactive application purposes of successive subjecting maintains that him Minarik added)), 2244(b)” (emphasis it does not impermissible ret- procedure is an this new petitions that ask for reconsideration bar application Section of the statute. roactive question whether the jurisdictional however, 2244(b)(3)(A), change pro- applies .... AEDPAeven firmly law which falls within cedural Id. at 99-100. change” category "procedural Mancuso, established to recall The may Landgraf be retro- described in mandate, appli "is different from court's Landgraf, U.S. spectively applied. See 511 a second as the cation for 1483, 275, L.Ed.2d 229 at 114 S.Ct. 128 recently quite in Calderon Court made clear ("Because 538, 1489, regulate procedure sec- rules of Thompson, U.S. 118 S.Ct. 140 523 conduct, Bell, ondary primary (1998)[.]” rather than Workman v. L.Ed.2d 728 .... (en banc) 331, (6th Cir.2000) procedural rule was institut- fact that a new 333 giving (order) (an rise to the suit de ed after the conduct equally divided en banc court application of the rule at does not make subsequent petition to file a second nying retroactive.”). trial corpus action which was also denied habeas AEDPA, denied, by the Lindh as read original panel), Because by the cert. 1194, 1193, light principles of of normal Court in 149 L.Ed.2d Instead, appli- statutory interpretation, calls for the squarely Byrd’s falls motion 2244(b)(3)(A) after to cases filed cation of of our en banc decision within the confines it is a rule of April and because King. States, dure, procedural since rules “regulate Cir.2001) (en banc) (noting that the AED- secondary rather than primary conduct” PA procedural contains both and substan- attaching avoid new legal conse- words, aspects). tive In other regardless quences to earlier Landgraf, actions. whether first federal pe- habeas 114 S.Ct. ... see tition pre-AEDPA, was filed he is now Slack, also 529 U.S. at required to procedures follow the outlined Minarik, ... 166 F.3d at 599 2244(b)(3)(A) §in before he can file a sec- (AEDPA’s establishment of courts of ap- ond or habeas successive See peals gatekeepers “is a change in Hanserd, (6th Cir.1997) 123 F.3d at 934 procedural law which falls within the (recognizing regardless of when their firmly ‘procedural established change’ filed, petitions first prisoners were seeking category described in Landgraf to file a second or successive peti- may be retrospectively applied”). That tion apply must now appropriate petitioner would-be apply must to a court of appeals as á gatekeeper under court gatekeeping appeals permis- AEDPA).10 section 2244 of sion to a subsequent file habeas petition, Circuit, alia,

The Tenth citing, inter rather directly than to a district Hanserd, expounded on procedural as- does not affect the petitioner’s underly- pect of the AEDPA: ing legal rights; it merely speaks to

It is clearly proper apply AEDPA’s will consider application. his procedural framework to all Johnson, Graham v. (5th Cir.1999)

successive applications after filed (“Substituting the the Act’s effective date. presump- court of appeals for the district court as against tion retroactivity contains well- gatekeeper against proce- abusive or established exception for rules of proce- durally defaulted claims would seem to procedure that legal does not "attach regardless new when the motion to vacate first consequences completed to events before its sentence was If the successive motion filed. enactment," petitioners posi in Minarik's proper is under gatekeeping pro- AEDPA’s permission tion must seek visions, Court permission to file a motion in the Appeals prior proceeding on a second granted district court will be .... If under petition even their if first was filed holding permission of this case is not before adopted. the Act was See In re Han needed because gatekeeping pro- AEDPA’s serd, 922, (6th Cir.1997) ("In 123 F.3d 934 applied pursuant vision cannot to Land- mates who wish to file a second or succes graf, court will so indicate and will sive first should file a motion in transfer the motion to the proper district Appeals] Court requesting [the permis pursuant § to 28 1631. U.S.C. Cf. 2244, 2255, §§ sion under 28 U.S.C. re 22(a). R.App. Fed. permis- P. Motions for gardless of when first motion to vacate sion categories that fall in neither of these filed.”). was i.e., those that would be both under barred Minarik, (3d In re 166 F.3d 599-600 and new law old and those that are 1999). Cir. previous barred filed motion after April 1996—will be order denied Hanserd, (6th 10. In In re 123 F.3d 922 Cir. this court. If either a requesting motion 1997), we procedure outlined for federal permission or a second or successive mo- inmates who to file a wish second or succes erroneously tion to vacate sentence is filed sive motion to vacate sentence as follows: district court should transfer Inmates who wish to file a second motion to this court or suc- under 28 U.S.C. Sims, § cessive motion to vacate sentence should 1631. See In re 111 F.3d (6th Cir.1997). first file a requesting motion in this court permission Hanserd, under 28 U.S.C. F.3d at 934. if ap- effect impermissible A liti- an retroactive retroactivity concerns.

raise no subject to en case is not expectation plied reasonable gant has no 2244(b)(3)(E); adjudicate King, will his tribunal particular banc review. See claims”). regardless Consequently, supra. filed, were petitions their first

when the matter. This should end court as a must turn to our prisoners 2244 of AED- under section gatekeeper En Banc Had Juris- Even if the Minarik, 599-600; 166 F.3d at PA. See diction, Byrd Exempted Not From Hanserd, 934; 123 F.3d at accord In re the AEDPA’s Substantive Standards Gallegos, States curiam) Cir.1998) (“Be- progeny, recognized we Hanserd (per AEDPA application if sub- third motion that [petitioner’s 2255] cause “imper- an ... the effective date of standards would have was filed after stantive AEDPA, required comply pending he was missibly retroactive effect” on authorization prior cases, Act and obtain gov- should pre-AEDPA then law filing in the dis- from this court before explicitly limited ern. This Court court.”). Sonshine, trict Hanserd, In In re however. (6th Cir.1997) (order), we 132 F.3d 1133 Daniels, at 1188-89. See also held: Turpin, Felker (“The (1996) 2333, 135 L.Ed.2d 827 Landgraf Because the Hanserd court’s petitioner to obtain requires Act analysis upon based the retroactive before appeals leave from the court of AEDPA the movant’s effect that had on in the dis- filing a second habeas claim, particular holding the Hanserd requirement simply court. But this trict similarly Con- must be circumscribed. court to the transfers from the district strictly sequently, while Hanserd is not screening function which appeals court of arising Bailey, limited to under claims performed by have been previously

would claims, from that class there apart required by 28 U.S.C. the district court be few other cases “in which a dif- will 9(b).”); King, Rule 190 F.3d at 482 matters,” Hanserd, ference 123 F.3d at (“As noted in Felker gatekeeping 934 n. and on which the the district ... the statute transfers from of AEDPA will thus have requirements screening appeals court to the court of impermissibly retroactive effect. by the dis- process previously performed Moore, Judge who authored Id. 9(b) of the Rules trict court under Rule Hanserd, was a member of the unanimous Governing 2254 Cases the United Green, 144 panel. See also Sonshine Courts.”). District States (holding that the Court’s Old short, Byrd’s request In to file retroactive inasmuch decision is not Chief petition habeas the district court arises law) (order; it a new rule of announced 2244(b)(3)(A) AEDPA as a under JJ.). Contie, Moore, Kennedy, Again, not procedure matter of and is therefore (6th Bell, Cir.), 209 F.3d 815 cert. Coe subject retroactivity analysis. Be- to a denied, gatek- procedural cause it falls within the (2000), Judge L.Ed.2d 516 Moore wrote: AEDPA, it is eeping requirements of the Hanserd, 2244(b)(3)(E)’s In we concluded that where subject peti- §to ban on prohib- Thus, gatekeeping provision AEDPA’s rehearing. panel’s the de- tions for appli- iting second or successive on whether the AEDPA’s new sub- cision prevents prisoner bring- from gatekeeping standards would have cations stantive ine, ing Bailey claim under 2255 but 132 F.3d at we made clear that, where the claim could been raised “apart have claims,” from that class of subsequent in a application under the there will be few cases in which application law, pre-AEDPA AEDPA’s gatekeeping pre-AEDPA of vs. AEDPA makes a provision impermissible has an retroac difference. Id. “actual innocence” tive effect and is not applicable to the claim is not within that claims” “class of Hanserd, Bailey because, claim. See 123 F.3d at unlike claim, Hanserd’s Bailey 929-34. This court subsequently limited and like the Green, claims in Sonshine and holding its Hanserd particular Byrd could have raised it in his first feder- claim in that case and concluded that petition, al and subject would have been “while Hanserd is not strictly limited to the abuse-of-the-writ standard under pre- arising claims under apart from Bailey, AEDPA law. In rejecting petitioner’s claims, that class of Sonshine, there will be few request in we stated: “Although other ‘in which cases the difference mat terms, couched Sixth Amendment ters’ and gatekeeping re issue is basically arising one under the quirements of AEDPA will thus have an Guidelines, Sentencing which would be impermissibly retroactive effect.” In re barred under both AEDPA old Sonshine, Cir. abuse-of-the-writ standard. Sonshine 1997) Hanserd, (quoting 123 F.3d at 934 would not have prevailed under pre-AED- 21).... n. light In law, our Sonshine deci PA as his would have been sion, we accept cannot interpreta Coe’s denied as an abuse of the writ.” Id. at tion the Hanserd as holding decision 1135. In rejecting petitioner’s impermissible AEDPA has an Green, ret we held: roactive whenever AEDPA’s stan effect Even if Old did not announce a Chief review, dard applied to an applica “new rule” because was dictated date, tion AEDPA’s filed after effective precedent, thus should retroac- results in a decision that would have tively applicable case, to this AEDPA been pre-AEDPA under different would still be applicable case, to this standard review. doing because so would not have a retro- added). 209 F.3d at (emphasis 822-23 active effect on pre-AEDPA Green’s Hanserd, petitioner’s conduct. Bailey is so This Green because claim was not available would not when he filed his been have able to establish first because cause to Bailey yet had not excuse his failure to assert his been claim in decided. The his pre-AEDPA § Hanserd court con- first 2244(b)(2) cluded that applying motion to vacate. If Old was dic- Chief AEDPA would work an by precedent, tated impermissibly ret- then his claim would roactive “novel,” effect on Hanserd’s second have been considered so as pre-AEDPA, because under the establish cause to excuse his failure to standard, abuse-of-the-writ assert Hanserd would this claim in his first motion to have been allowed to vacate.... Bailey his raise claim, but under the AEDPA he would not. Thus, even if Old not an- did Chief reason, For this Hanserd did not need rule, nounce a applying new AEDPA to

permission from this Court to file a second this case not would have had retroac- in the district court. pre-AEDPA tive effect on conduct.

Although Hanserd strictly “is not limit- Green would barred from asserting be ed to arising claims under Bailey,” Sonsh- this claim in pre-AEDPA motion to

604 McCleskey doc- ed as abuse-of-the-writ. of the writ under the

vacate abuse Zant, 467, 111 v. 499 U.S. S.Ct. trine, able to not have been as he would (1991) 1454, (stating L.Ed.2d 517 that to 113 his failure to excuse establish cause the failure to cause to excuse to establish his first motion this claim in present in initial the include a claim the .... vacate objective must that “some petitioner show Green, 144 F.3d at.387-88. impeded factor external defense his actual inno could have raised Byrd in raise the claim” the counsel’s efforts to peti federal habeas in his first cence claim 493-94, 111 at prior petition.) Id. S.Ct. (1) Brewer the he obtained tion because added).11 words, In other (emphasis 1454 file his first did not in 1989 and affidavit “in not a case difference this is (2) 1994, well was until matters.” that the actual by this time established advantage of the can take miscarriage jus Nor innocence/fundamental the exception innocence abuse-of- actual procedural excuse exception tice would the standard. Under either default, of the writ. the-writ as an abuse as well (the petitioner “must See, Schlup12 standard Thompson, v. 501 U.S. e.g, Coleman not that no 2546, likely that it is more than 722, 750, 115 L.Ed.2d 640 show convicted him (1991) context); juror would have Saw reasonable (procedural default evidence”) 333, or the Saw- light 112 in of the new S.Ct. yer Whitley, v. 505 U.S. 13 (the (1992) (abuse petitioner “must 2514, 120 yer of writ standard show 269 L.Ed.2d that, context). words, convincing clear and evidence but Byrd cannot In other error, no be for a reasonable exception constitutional himself of the Hanserd avail juror petitioner eligi- inno would have found the his actual cause he could have raised appli- under the penalty ble for the death peti cence claim in his first federal law”), Thus, tion, pre- procedural cable state actual not under but chose to. claim fails.14 As detailed the law, reject- innocence Byrd’s claim would AEDPA Thus, fact, acquit- according Byrd, been attorney the had he Byrd's indicated to 11. In aggravator, press had the Brewer affidavit he was not that he has ted of this death- words, aggra- eligible. since 1989. the In other without circumstance, vating he would have been 298, Delo, S.Ct. Schlup U.S. v. 12. aggravated guilty "only” murder (1995). Schlup, the have been to a "soft” would sentenced meaning Supreme that "[t]he Court reiterated term, parole eligibility twenty at to life Sawyer actual formulated innocence as years. Byrd about fourteen further contends merely require not a show- and Catrier does aggravator, he could at best that with light ing exists that a reasonable doubt hope twenty years to a term of least life. at evidence, new rather no rea- but Thus, according Byrd, principal offend- juror the defendant sonable would have found aggravator merely a er was not "sen- Ohio guilty.” at 115 S.Ct. 851. Id. Thus, Sawyer. as in tence enhancer” view, Sawyer Whitley, Byrd's Schlup S.Ct. is the test. correct 13. L.Ed.2d 269 argument, Although, for sake of the I analyzed Schlup, I do have this claim under argues misunder- agree Schlup is the correct test. As wrong "actual applied stood Ohio law and pointed out in Calderon Sawyer. Byrd innocence” test in claims Thompson, jury under Ohio's statute (1998): L.Ed.2d 728 capital required to convict a defendant of Sawyer appli- has a broader standard principal aggravating circumstance offender apparent. 2929.04(B)(7) than is first As the guill/innocence cation at the in R.C. 2929.03(B). capital explained Schlup, when a phase of trial. See R.C. former murder, the 1989 Brewer affidavit the opinion, prison guard who testimony, Brewer’s own trial testified that Schlup pres- contradicts had been in his suspect because it was not made until ence for two is and half minutes on his way room, jeopardy dining after double had attached to both to the and that he was not convictions, Byrd’s Brewer’s and and is out of breath. These facts created doubt dying declara- Schlup inconsistent with Woodall’s as to whether could partici- have panel opinion, pated tion. we noted in the As the' murder and still arrived in the hopelessly contradictory, prison dining this evidence is room 65 seconds before the (a internally, and the both as between two distress call was received fact which had caught codefendants. On the basis of this evi- been videotape). As the Su- dence, observed, it possibly preme cannot be concluded that if these facts were true, likely any surely it is more than not that reason- “it [could be said that a not] juror juror, conscientiously able would have convicted following judge’s the evidence, light proof beyond of this let alone that this is instructions requiring rea- doubt, convincing clear and evidence that would sonable would vote to convict.” that Schlup, allow us to conclude no reasonable S.Ct. 851. juror Byrd eligible would have found Schlup instructs that the court must “as- penalty. the death probative sess the force of the newly pre- completely “new” evidence is un- sented evidence connection with the evi- like pre- guilt the evidence of actual innocence dence of adduced at trial.” Id. at in Schlup. Schlup, part sented In the new As analy- S.Ct. 851. of this sis, may evidence included sworn statements of sev- “the court consider how the tim- eyewitnesses Schlup ing likely eral was not in- submission credi- Furthermore, Schlup bility probable volved the crime. of the affiants bear on the an presented reliability statements from inmate who of that evidence.” Id. Here of course, reported had out the timing he sent distress of Brewer’s first affida- call shortly highly suspect, after the disturbance caused vit is because he made it petitioner challenges underlying capital “principal ag- his who committed the offender” murder on the conviction basis of ele- gravated Tewksbury murder of Monte while essentially ment that as a sen- "function[s] committing attempting to commit the enhancer,” Sawyer tence "clear and Kwik, aggravated robbery King as well convincing” applies standard to the claim. aggravated robbery of as the Monte Tewks- Schlup, supra, at 115 S.Ct. 851 .... bury himself.2 Thus, capital petitioner to the extent a Ohio, “principal FN2. In offender” victim, Schlup claims he did not kill the Penix, State v. means "actual killer.” likely applies. "more than not” standard 32 Ohio St.3d 513 N.E.2d capital petitioner To the extent contests (Ohio 1987). special rendering circumstances him el- Byrd, 209 F.3d at 496. igible Sawyer penalty, for the death Finally, must be that in his motion noted convincing” applies, "clear and standard argued panel, Byrd merely before the that he irrespective special of whether the circum- penalty.” Byrd’s was "innocent of the death capi- stances are elements of offense of Support, at Memorandum n. or, here, sentencing tal murder mere claiming Significantly, Byrd is he enhancers. murder; aggravated simply innocent of Thompson,

Calderon v. "principal he was not the offender.” It is this specification penal- that warranted the death opinion affirming the In our denial of his ty- first habeas we observed: event, Byrd’s any claim fails under either charged Petitioner also was with two death i.e., . penalty specifications; that he was the standard. affidavit, it contradicts because er’s 1989 had both been and

only after he oath, be- testimony under and by double his earlier were covered and convicted to nothing had with all-but-one of Brewer it is inconsistent By cause jeopardy. Byrd in the lose, exculpate years. he could over the statements Woodall’s Scott, Drew v. process. pre- cannot meet the Quite simply, Byrd Cir.1994) (“we (5th little still have standard be- AEDPA actual innocence postsen- codefendants] in [the confidence is evidence he has cause the “new” he because had experience truth tencing proba- liar. The proven affidavit of a by incrimina to lose nothing whatsoever affidavit de force of the Brewer tive 60-year sen receiving ting himself after testimony changing minimis. Brewer’s tence”; prisoner’s “new rejecting state meeting close to the actual cannot come recently-obtained in the form of evidence” Sawyer either innocence articulated claiming that prisoner a third statement of Schlup. take sole credit the codefendant he heard pled guilty to murder before he cavalierly attempts to intro- Byrd also murder); Vergara, States v. United inmates, former eight affidavits of duce Cir.1983) (holding that that Armstead bed. who claim may deny the defendant the district is not rehash of an old claims that “[t]his trial, evidentiary hearing, without an a new the initial habeas claim claim. It is not previously that a silent it determines if Armstead an undisclosed had deal. to postconviction willingness accomplices’s evidence, Rather, new these affidavits are credible); is not his exculpate codefendant trial or in the presented original not at (Tex. State, Drew v. 743 S.W.2d habeas, they support a new claim— 1987) (“It for one is not unusual Crim.App. testimony crucial was a Ronald Armstead’s accomplices convicted to assume of two Petition, lie, 7- or no deal deal.” exculpate and thus his code- entire fault new, may be but 8 n. 2. These affidavits affida filing recanting fendant claim, support a new as the they do statement.”). If Brewer or other vit passage in the decision following believed, in the we are affidavit is the denial of his first Byrd’s appeal from two defendants ad position having odd reveals: scene, body, a dead but no mittedly at the convicted murderer. posits several chal- appeal, On Petitioner testimony.... Sec- lenges Armstead’s Brewer affidavit also lacks credibili- ond, alleges Petitioner Armstead’s it with his sworn because is inconsistent ty testimony about Petitioner’s confession Chambers, testimony. States v. Cf. respects. material was false all (6th Cir.1991) (“Re- position, pre- of his Petitioner support are affidavits and witnesses viewed canting from several individuals sented affidavits suspicion.”). prov- Brewer’s extreme with were incarcerated with Armstead who weighs very a liar in case en status as and Petitioner the Cincinnati Work- probable reliability heavily against Spring house in the of 1983. Petitioner Further- 1989 and 2001 affidavits. his asserts that these affidavits show more, dy- it is inconsistent Woodall’s inmate, Virgil Armstead and another declaration, to be con- ing happens Jordan, were involved scheme testimony. trial with Brewer’s sistent testify falsely Petitioner order against Schlup under the more lenient stan- Even with the further their own causes dard, juror that no simply cannot be said County Prosecutor’s Office. Hamilton vote to convict the basis of Brew- would (6th Collins, 486, 309, Teague, v. 500 fect.” at supra, 109 S.Ct. denied, Cir.2000), 1082, cert. 121 531 U.S. (2001). 786, L.Ed.2d we S.Ct. 148 682 As Finality also quality enhances the decision, noted re judging. perhaps There is “nothing credibility newed attacks on Armstead’s more judge’s subversive of a sense of 2244(b)(1)(“A are barred under claim responsibility, subjective of the inner in a presented second or successive habeas conscientiousness which is so essential a corpus application under section 2254 that part of the difficult and subtle art of presented in a prior application shall well, judging than an indiscriminate ac- dismissed.”). Byrd’s attempt be to other ceptance of the notion that all the shots wise throw this evidence into the mix is always will by be called someone else.” utterly improper. Bator, Finality in Criminal Law and Federal Corpus Habeas for State Pris- Underlying

The Policies Habeas oners, 441, (1963). 76 Harv. L.Rev. 451 Jurisprudence Direct That This Case Come to an End Finality serves as well to preserve the federal Federal balance. habeas review In addition to contravening express “ of state convictions frustrates ‘both the AEDPA, directive of the En Banc sovereign power States’ to punish of- Court’s consideration of this case runs good-faith fenders and their attempts to counter to the strong policy concerns that ’ rights.” honor constitutional Murray underlie federal jurisprudence. habeas Carrier, 487, supra, at 106 S.Ct. recently reiterated ... system recog- 2639[.] “Our federal principles these Calderon: nizes the independent power of a State In light profound of “the societal costs through articulate societal norms juris- attend the exercise of habeas law; criminal power but the State diction,” 527, v. Murray, Smith 477 U.S. pass if laws means little the State cannot 539, 2661, 106 S.Ct. 434 L.Ed.2d McCleskey, enforce them.” 499 U.S. at (1986), we have found it necessary to 491, 111 S.Ct. 1454. impose significant limits on the discre- tion of grant federal court to habeas Calderon, 523 U.S. at 118 S.Ct. Zant, 467, relief. McCleskey v. 499 U.S. (some internal quotation citations and 111 S.Ct. omitted). marks A the En Banc decision Court to hear These limits enduring reflect our re this case will not contrary spect for “the State’s interest in the law, clearly rule of defined the AED- finality of convictions that have survived PA, important principles but will violate sys direct review within the state court jurisprudence. Abrahamson, tem.” [Brecht v. reasons, foregoing For all the and those 619, 635, 113 1710, 123 S.Ct. L.Ed.2d 353 (1993) opinion denying Byrd’s set forth Finality ... is ] essential both appeal from the denial of his first habeas the retributive and the deterrent func Collins, petition, see 209 F.3d 486 tions of criminal law. “Neither inno (6th Cir.2000), denied, en banc just cence punishment nor can be vindi Collins, Byrd v. amended en judgment cated until the final is known.” (6th 22, 2000), McCleskey, Aug. banc order Cir. cert. supra, denied, finality, 1454. “Without the criminal law (2001), deprived of much of its deterrent ef- L.Ed.2d 682 as well as the per- Byrd’s request denying

decision file a second mission by the Hamil- prepared 1. Documents — -, No. 01- Byrd, In re County Prosecutor’s Office ton 11, 2001), I submit Sept. Cir. County Hamilton Sheriffs and/or rehearing en Byrd’s petition authorizing, directing Department denied, sponte the sua and that should be Armstead, Vir- identifying Ronald or dissent. I therefore improper. remand is Jordan, Randolph Marvin and gil questioned to

Robert Jones APPENDIX relating to the issue of inno- matters matter. cence raised this ac judges regular A by prepared or received 2. Documents that the court re have voted tive service County Prosecutor’s the Hamilton of a development matter for the mand this County or Hamilton Sheriffs office sua permit sufficient to factual record Police De- Department Cincinnati request of a for leave consideration sponte Arm- relating to Ronald partment for a writ habe file a second to incarceration, testimony and stead’s jurisdictional for a The basis corpus. hearing dispo- parole revocation Triestman v. sition. (2d States, Cir. 1997); Hopkins, Krimmel v. received reports Documents or Cir.1995). Attorney office or General’s Prosecutor’s office County Hamilton development for the The remand of Cor- Department from the Ohio ancillary in nature to factual record is institutions, relating rections or its A corpus. the writ of habeas petition for to this matter. judges the active has decided majority of does not exist sufficient pro- that a factual basis that this matter further direct We court to entertain Magis- the en banc with the expedited ceed on an basis for a successive report the Petitioner’s factu- Judge submitting trate with remand, therefore issue this filing. We to the en findings al and recommendations Judge the Chief South- days directed to from date of banc court within appointment Judge. of Ohio for Magistrate ern District of the appointment conduct an Magistrate Judge promptly be, that the matter IT IS ORDERED hearing. factual appropriate Magis- hereby is remanded. The hearing develop should a record findings factual Judge report trate shall claim of inno- in the regard jurisdiction John which retains to the Ohio courts but on presented cence matter. testimony of witnesses or evi-

which no that the IT FURTHER ORDERED IS taken. direct dence was We currently place remain stay of execution conducted scope inquiry of the factual force, further order of this pending Judge shall include testi- Magistrate court. forth in the mony relating to matters set Brewer, Cahill, Dar- of John Dan affidavits Messer, Benny Fields.

ryl Roger Hall and addition, in- inquiry the factual shall to,

clude, not limited an examination but is. following: inherent to its Notes that sponte is U.S., 162 Irving reviewing determining court. lineates standards when Cir.1998)(“The (1st. 154, 161 authori rehearing may en banc be ordered “does of a prior the decision ty to overrule power not affect the of a court of appeals logically flows from in the same case hearings [sic] to initiate banc of full error-correcting function sponte.”) court.”) appellate federal granting power granted the extent of to Given to review their own deci ability courts the in determining this Court whether to re banc, deliberately Congress en sions banc, any a decision of a en view statute, operative 28 U.S.C. broad. The attempt by Congress abrogate this au 46(c), “rehearing be requires only likely run thority Sepa would afoul of by is ordered [sic] fore the court of Doctrine. ration Powers See Miller v. judges the circuit of the circuit majority of French, 327, 341, 530 U.S. 120 S.Ct. regular are in active service.” who (2000)(“the Constitution 46(c) interpreted Supreme Court has one prohibits encroaching branch from on appellate federal courts extensive accord another.”) prerogatives the central of rule-making authority regards to re by properly This Court avoids this issue viewing matters en banc. See Western 2244(b)(3)(E) according sufficiently nar Co., R. Corp. R. v. Western Pacific Pacific preclude any row construction so 247, 260, 656, 97 L.Ed. 345 U.S. Constitutionality.” [its] [ “serious doubts of 46(c) (1953)(“[28 vests ] U.S.C. International Association Machinists v. rehearings to order en power court the Street, 367 U.S. S.Ct. no further. It neither for goes banc. It Hadix v. L.Ed.2d See also each active requires bids nor member Johnson, Cir. to entertain each Appeals 1998)(rev’d other grounds)(statutes hearing for a en banc. The “in a manner should be construed its own court is to devise adminis leftfree valid.”) constitutionally the statute renders machinery provide the means trative assuming arguendo Congress Even whereby majority may order such a powers, Article I alter this may, within its added). hearing.”)(emph&sis Further to review own power Court’s its decisions more, has determined Supreme motion, explicit it must do so upon its own appel that the which a federal process express language In the ly. absence a matter en late court decides to rehear review, a statute removing federal internal, inherently beyond the re banc is presumptively permits such review. See litigants view of or even the (2nd. INS, Henderson v. v. Baltimore & Court itself. See Shenker Cir.1998)(discussing well-accepted “the Company, Railroad Ohio statutory repeals rule of construction (1963)(“the 1667, 10 L.Ed.2d 709 jurisdictional statutes implication rights litigant go no farther than the statutes) (and of the habeas particularly machin right to know the administrative ... the presumption [and] are disfavored followed.. .for this Court ery that will be review.”) judicial See also [is] favor to hold otherwise would involve unneces

Case Details

Case Name: In Re: John W. Byrd, Jr. Movant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 9, 2001

Citation: 269 F.3d 585

Docket Number: 01-3927

Court Abbreviation: 6th Cir.