The United States Court of Appeals for the Sixth Circuit issued three en banc opinions in 2023.
WILLIAM GLENN ROGERS v. TONY MAYS, WARDEN1
Judge Amul Thapar in June 2023 authored an en banc opinion affirming the denial of the appellant’s habeas petition which claimed ineffective assistance of counsel (IAC) in connection with his felony murder conviction and death-penalty sentence in Tennessee state court. One significant issue addressed whether to excuse the appellant’s procedural default at the post-conviction phase.
A jury convicted the appellant of raping and murdering a nine-year-old girl and sentenced him to death based in part on its finding that he killed the victim while committing a rape. In Tennessee, the predicate rape required proof of penetration. The appellant claimed that his trial counsel failed to adequately investigate and challenge evidence that heads of sperm had been detected in the victim’s underwear, arguing that his counsel should have argued a “washing machine theory,” i.e., that the sperm could have been deposited during a laundry cycle.
The majority applied Antiterrorism and Effective Death Penalty Act (AEDPA) deference, concluding the state court had reviewed the matter on the merits as it related to the guilt and penalty phases based upon the courts’ reference to “verdicts,” plural, and the appellants’ concession to merits-based review. (The dissenting judges disagreed with how the majority had parsed the state court decision, urging that de novo review was appropriate, but did not address the appellant’s waiver.) The majority went on to conclude that claims of ineffective assistance were doubly meritless: counsel did not unreasonably fail to pursue the far-fetched washing machine theory and the appellant could not show prejudice arising from lack of evidence that merely confirmed that the source of the sperm was inconclusive.
The appellant also brought several defaulted claims of ineffective assistance of trial counsel and sought to excuse the default by claiming his post-conviction counsel had performed deficiently by failing to preserve the claims in a motion for a new trial, which Tennessee law requires as a prerequisite to an appeal. Under Martinez v. Ryan2 and Trevino v. Thaler,3 ineffective assistance of post-conviction counsel can excuse procedural default in some circumstances. Here, however, the majority applied Shinn v. Ramirez,4 which precluded federal courts from conducting evidentiary hearings on post-conviction counsel claims, concluding that the appellant could not establish that the exception applied because he could not point to anything in the state court record to prove his trial counsel claims were substantial. The dissent believed it was imprudent for the majority to apply Shinn prior to a remand to the district court. The remainder of the dissent was dedicated to arguing that the Martinez-Trevino exception — which does not apply to appellate counsel IAC claims — should apply to post-conviction counsel IAC claims, which the majority assumed without deciding.
The appellant brought two remaining non-IAC claims. He claimed that there was insufficient evidence of penetration. The majority held that a rational juror could have inferred penetration by the presence of sperm in the victim’s underwear; evidence that the appellant was the last person to see the victim alive; and the available inference that the victim’s shirt was inside-out because the appellant had removed it. The dissent would have held that this body of evidence, while not necessarily insufficient to support an inference of penetration, supported its conclusion that the appellant had established that he was prejudiced by his counsels’ ineffective assistance. Finally, the appellant claimed that the state courts unreasonably excluded evidence that the victim’s brother had sex with her six years prior to the killing. The majority rejected that argument, holding that the state courts reasonably concluded that such evidence was properly excluded because it was “remote in time and irrelevant and possibly confusing to the jury” as the victim’s brother had significant mental illness and could not remember making the claim.
IN RE: DANNY HILL5
This opinion from August 2023 addressed whether the habeas petitioner’s second-in-time petition is “second or successive” as defined in 28 U.S.C. § 2244(b)(1). When a petition is second or successive, it cannot proceed unless it is grounded upon a new, retroactive rule of constitutional law or sets forth newly discovered evidence not available previously that would have changed the outcome at trial. But not all second-in-time habeas petitions are second or successive.
The petitioner-appellant was convicted of the kidnap, rape, torture, and murder of a 12-year-old boy. The voluminous evidence included forensic testimony that bitemarks on the victim came from the appellant. A complicated procedural history ensued. After the appellant exhausted his state court remedies, he filed a 1996 habeas petition challenging, among other things, the denial of expert assistance on the bitemark evidence. The matter was remanded to the state court to apply a new constitutional rule regarding the appellant’s alleged intellectual disability, which an en banc panel put to rest in the warden’s favor in 2021.
Meanwhile, however, the appellant moved for a new trial in state court based on newly discovered evidence — two scientific reports that postdated his conviction and habeas petition by about two decades — that significantly undermined the prosecution’s bitemark testimony. The state courts held that the reports needed to have existed at the time of trial to be cognizable and, regardless, they would not have changed the outcome. The appellant in 2020 filed a second habeas petition challenging this decision.
Writing for the majority, Judge John Nalbandian evaluated whether the 2020 petition was second or successive. After cataloguing three circumstances in which a second-filed petition is not second or successive, he concluded that the appellant’s petition was indeed second or successive. First, notwithstanding its connection to the motion for a new trial, the second petition ultimately attacked the same judgment of conviction. Second, the claim had been “ripe” at the time of the first petition insofar as some challenge to bitemark evidence was available at that time. This stood in contrast to, e.g., a non-successive, second-filed petition raising an ex post facto challenge to new parole conditions imposed during the petitioner’s incarceration. Third, notwithstanding the claim’s ripeness, the appellant failed to raise the claim. Accordingly, with none of the exceptions being applicable, the appellant’s second petition was deemed second or successive.
The majority observed that it was not ignoring the fact that the new evidence was not available at the time of trial. But the proper consideration of that fact belonged in the gatekeeping procedure set forth in 28 U.S.C. § 2244(b)(2)(B) — which the majority remanded to the original panel. In other words, the non-existence of the evidence was not relevant to the ripeness question.
In dissent, Judge Eric Clay (joined by judges Karen Nelson Moore and Jane Branstetter Stranch) took issue with the majority’s conclusion that the appellant’s claim — invoking a sea change in bitemark forensics — was “ripe” when his first petition was filed. The dissent stated that the second petition’s claim is properly understood to comprise the unreliability of the testimony rather than merely an abstract challenge to bitemark evidence, rendering the claim unripe at the relevant time. A contrary rule, asserted the dissent, imposes an impossible burden on a petitioner to predict future scientific discoveries in their original petition and even if such a prediction had been made, it would have been unsupportable.
Judge Amul Thapar concurred with the majority and took the opportunity to criticize the Sixth Circuit’s habit of ignoring a statutory 30- day deadline to decide motions for orders authorizing the district court to consider a second or successive petition. The concurrence was joined by Chief Judge Jeffrey Sutton and judges Richard Griffin, Raymond Kethledge, and Chad Readler.
SAMUEL FIELDS v. SCOTT JORDAN, WARDEN6
Judge Eric Murphy in November 2023 penned an en banc majority opinion affirming the denial of habeas relief and reaffirming a petitioner’s need to identify “clearly established federal law” in overcoming AEDPA deference.
In 1993, the appellant became very intoxicated one evening (including using the hallucinogen PCP) before walking to the home of his girlfriend’s landlord, using a knife to remove 17 screws from the landlord’s storm window to gain access to her home, and murdering her with a different knife. The appellant was found next to the victim’s body and confessed to two police officers and, later, an EMT. At trial, however, he pursued an innocence defense and sought to blame his confessions on his intoxication.
During deliberations, the jury had employed the knife allegedly used to remove the victim’s storm window to remove a cabinet door in the jury room. (The defense theorized that the appellant had been too intoxicated to complete this task.) The jury’s experiment came to light and the appellant argued it violated his Sixth Amendment rights to confrontation and an impartial jury trial and his 14th Amendment right to due process.
The majority held that the appellant failed to identify “clearly established Federal law, as determined by the Supreme Court of the United States” — a prerequisite to habeas relief under 28 U.S.C. § 2254(d)(1) — because no Supreme Court case has addressed the specific scenario of an out-of-court jury experiment that employed unadmitted physical evidence. In dissent, Judge Moore, joined by judges Clay, Stranch, Stephanie Dawkins Davis, and Andre Mathis, would have permitted the appellant to rely on a Sixth Circuit case holding that the Supreme Court had established the relevant principle.
The majority and dissent disagreement hinged on the validity of that case, Doan v. Brigano,7 in which a juror simulated the victim’s bruise at her home using lipstick and communicated her conclusions to the rest of the jury, violating the defendant’s rights. Doan interpreted prior Supreme Court case law as establishing that a jury’s consideration of extraneous material violates a defendant’s constitutional rights. The Supreme Court case law on which Doan relied comprised a case in which a bailiff told the jury the defendant was guilty and wicked, thereby acting as a witness against the defendant, and a case in which the prosecution’s two law-enforcement witnesses had repeatedly fraternized with jurors throughout the trial.
Whereas the dissent urged application of Doan’s conclusion regarding a juror experiment, the majority deemed Doan to have been abrogated because it was issued “only five years after AEDPA” and prior to case law interpreting the phrase “clearly established” to exclude “abstract principles.” It concluded that the two Supreme Court opinions employed in Doan did not constitute pronouncements regarding juror experimentation. Because the constitutionality of the jury’s consideration of extraneous physical evidence was an abstract principle, the majority held that the appellant could not invoke Doan. The appellant was left with no clearly established federal law in his favor, precluding relief.
The dissent did not take issue with the majority’s disposition of the appellant’s remaining four claims, three of which comprised claims of ineffective assistance of counsel regarding trial strategy. Generally, the appellant argued that counsel should have emphasized his intoxication, but the court ratified counsel’s strategy of deeming such evidence as “double edged,” potentially supporting the prosecution’s theory. Lastly, the court held that the state courts reasonably declined to permit the appellant to introduce parole statistics at the penalty mitigation phase, which the state court deemed irrelevant.