Cardell Houston v. Anthony Davis

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 24, 2025
• Docket: 24-3280
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0101n.06

Case No. 24-3280

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 24, 2025 ) KELLY L. STEPHENS, Clerk CARDELL D. HOUSTON, ) Petitioner - Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) NORTHERN DISTRICT OF OHIO ANTHONY DAVIS, Warden, ) Respondent - Appellee. ) OPINION )

Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Cardell Houston was convicted in Ohio state

court of two counts of murder and two counts of felonious assault. He appeals the district court’s

denial of his petition for a writ of habeas corpus. Although Houston’s petition is untimely, he

asserts a claim of actual innocence, which, under Schlup v. Delo, could allow us to consider the

merits of his underlying constitutional claims. See 513 U.S. 298, 316 (1995). Because Houston’s

petition does not pass Schlup’s gateway, we are barred by the one-year statute of limitations in the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from considering his habeas

claims on the merits. We thus affirm the order of the district court denying the habeas petition.

I.

In 2016, an Ohio grand jury indicted Cardell Houston on three murder counts, two counts

of felonious assault, and one count of illegal weapons possession. The charges stemmed from the

murder of William Barnes, Jr., who was shot from behind while sitting in the front seat of his No. 24-3280, Houston v. Davis

Hyundai Sonata in Cleveland, Ohio on November 20, 2015.1 The events were captured on

surveillance camera footage from neighboring houses. The Sonata parked behind a blue Chevy

Trailblazer; two men got out of the Trailblazer and joined Barnes in the Sonata, with one in the

passenger seat and the other in the rear seat on the passenger side. Flashes of light in the back seat

area of the car were visible on camera; the two men got out, and the man who had been sitting in

the back seat leaned inside, placing his left hand on the roof of the Sonata near the right rear door.

That same passenger then returned to the Trailblazer. When he did so, he was carrying an object

in his right hand that appeared on the video to be a firearm.

Neighbors called 911, and Barnes was found in the driver’s seat and later pronounced dead.

The trajectory of three of five bullet wounds in Barnes’s body, as described in a doctor’s testimony

based on an autopsy, supported the prosecution’s theory that Barnes had been shot by the person

who had been in the back seat of the car and who had touched the roof after getting out.

In an effort to identify that person, investigators swabbed the roof of the Sonata and

requested DNA testing. Lisa Moore, a state forensic examiner, testified at trial about the results

of the testing. According to her testimony, the swab in question contained a “major” and a “minor”

component, and “[i]n the absence of an identical twin, Cardell Houston is the source of the major

DNA component obtained from [the swab sample] to a reasonable degree of scientific certainty.”

DE 7-2, Trial Transcript, Page ID 925–26, 929–31. In June 2017, the court found Houston not

guilty of aggravated murder, but guilty of the two other murder counts and two counts of felonious

assault. The State dismissed the illegal weapons possession charge. Houston was sentenced to a

1 Houston waived his right to a jury trial, and the state trial court judge found the facts; these facts are also reported in the opinion of the Ohio Court of Appeals in Houston’s direct appeal.

-2- No. 24-3280, Houston v. Davis

term of 15 years to life on Count 2, to be served following a three-year firearm specification

associated with Count 2.

Houston appealed, and the Ohio appellate court affirmed his conviction. The Ohio

Supreme Court declined to exercise jurisdiction over his appeal, and Houston’s conviction became

final on March 26, 2019, when he did not file a petition for certiorari with the Supreme Court of

the United States within 90 days of the Ohio Supreme Court’s decision.

Houston had also filed a petition for state postconviction relief in September 2018, which

the trial court denied without a hearing on December 27, 2018. In support of his petition, Houston

argued ineffective assistance of counsel—specifically, that his trial counsel did not adequately

investigate or undermine the DNA evidence used to convict him—and adduced a letter from an

expert, Dr. Dan Krane, elaborating on potential weaknesses with the DNA evidence. Houston

appealed the denial of his petition for post-conviction relief, and the Ohio Court of Appeals

affirmed. The Ohio Supreme Court declined to take jurisdiction over the postconviction review

proceeding on March 17, 2020. AEDPA’s one year limitation period, which had been tolled by

the proper filing of the state postconviction petition, began to run on that date.

28 U.S.C. § 2244(d)(1) and (2); see Lawrence v. Florida, 549 U.S. 327, 337 (2007); Boyce v.

Warden, No. 24-3363, 2024 WL 4664661, at *2 (6th Cir. Sept. 30, 2024). Houston filed the instant

federal habeas petition more than a year later, on October 22, 2021

Because the limitations period had passed, consideration of Houston’s arguments on the

merits is barred by AEDPA absent a showing of new reliable evidence to pass through the Schlup

gateway. Hubbard v Rewerts, 98 F.4th 736, 742 (6th Cir. 2024). The district court, recognizing

this, held that his new evidence was insufficient to meet the Schlup standard, and denied his

-3- No. 24-3280, Houston v. Davis

petition. However, the district court granted a certificate of appealability limited to whether

Houston’s actual innocence claim satisfied the standard set by Schlup. Houston timely appealed.

II.

We review the district court’s denial of the habeas petition de novo. Cleveland v.

Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012).

A habeas petitioner may be entitled to an equitable exception to AEDPA’s one year statute

of limitations if he makes a credible showing of actual innocence. Souter v. Jones, 395 F.3d 577,

599 (6th Cir. 2005). “[T]o avoid a procedural bar to the consideration of the merits of his

constitutional claims,” or to “pass through” the Schlup “gateway,” a petitioner must present “new

evidence of innocence” sufficiently “strong that a court cannot have confidence in the outcome of

the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.”

Schlup, 513 U.S. at 316, 327. The petitioner must show that, in light of the new evidence, “it is

more likely than not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Id. at 326–27. “[A]ctual innocence means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks

omitted). Schlup includes a non-exhaustive list of examples of the kinds of evidence that could be

at issue: “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence.” Schlup, 513 U.S. at 324.

Houston’s new evidence is the declaration of Professor Dan E. Krane and academic articles

about DNA testing. Houston’s argument is that the DNA sample was the only physical or

testimonial evidence tying him to the scene of the crime, and that a scientific expert such as Krane

could have lessened the force of this evidence. Dr. Krane reports that he is very familiar with the

kinds of DNA testing used in forensic analysis carried out in crime laboratories. Krane declares

-4- No. 24-3280, Houston v. Davis

that he is not able to draw specific conclusions in this case without access to the underlying

electronic data, but he states that, had he testified at trial, he would have been able to contextualize

the term “major contributor” as it appeared in the state’s testimony. DE 7-1, Postconviction

Review Petition, Page ID 276-77. The clear import of Krane’s declaration is that (1) he would

have been able to dilute the force of the state’s “major contributor” testimony and (2) that, if he

had been able to review the underlying electronic DNA data, he might have been able to present

an alternative theory of the case—one that could have supported Houston’s innocence.

As an initial matter, the district court began by saying that Houston’s new information was

“not new” because “[i]t could have been discovered at trial through the exercise of reasonable

diligence.” DE 11, Order Denying Petition for Habeas Corpus, Page ID 1176. We have

acknowledged a circuit split on the question of whether “new” evidence needs to be newly

discovered—i.e., not available at the time of trial—or merely newly presented. Cleveland, 693

F.3d at 633. We have declined to resolve that split. In some cases, we have rejected the argument

that evidence must be newly discovered. Souter, 395 F.3d at 595 n.9 (6th Cir. 2005); Cleveland,

693 F.3d at 633 (noting that Souter “suggests” that newly presented evidence is sufficient”). In

other cases, we have analyzed newly presented evidence, while still refusing to explicitly decide

the issue. Gibson v. DeMartino, No. 23-3798, 2024 WL 1349045, at *3 (6th Cir. Mar. 28, 2024);

Rizk v. United States, No. 22-3834, 2023 WL 5275505, at *3 (6th Cir. Feb. 27, 2023). And in still

other cases, we have only considered newly discovered evidence, on grounds that newly presented

evidence is not truly “new” as contemplated in Schlup. See e.g., Connolly v. Howes, 304 F. App’x

412, 418 (6th Cir. 2008); Steele v. Jenkins, No. 17-4171, 2018 WL 2144073 at *3 (6th Cir. Mar.

5, 2018). In any event, however, the district court properly concluded that Houston’s “new”

evidence did not rise to the level required by Schlup.

-5- No. 24-3280, Houston v. Davis

On appeal, we consider “all the evidence, old and new” and make “a probabilistic

determination about what reasonable, properly instructed jurors would do.” House v. Bell, 547

U.S. 518, 538 (2006) (internal quotation marks omitted) (quoting Schlup, 513 U.S. at 327–29).

Dr. Krane’s declaration and associated material do not rise to the level of sufficiently reliable new

evidence of innocence. To begin with, it is inherently speculative in nature: Dr. Krane writes about

what he would potentially have been able to discover had he been able to examine the data. And

this is simply not enough. We have routinely rejected claims of actual innocence based on

speculation about what the evidence might have shown if further testing or investigation had been

done. Steele, 2018 WL 2144073 at *3; Gibson, 2024 WL 1349045, at *3.

Krane’s potential testimony about the true meaning of the term “major contributor” also

falls short. To be sure, the DNA evidence was the strongest evidence linking Houston in particular

to the scene of the crime. But the Krane declaration, even if it were not speculative, would only

tend to support an inference that Houston had touched the car along with other people, or long

before the murder—not that he had never touched it at all: “The fact that someone is a major

contributor does not mean that he had more contact or more recent contact than other contributors

with the site from which DNA was taken.” (DE 7-1, Krane Declaration, Page ID 276). And

Houston’s claim was that he was a complete stranger to the victim.

And further, even if, once again, the declaration is given its full weight, this testimony

would only question or weaken the prosecution’s theory of the case: it does not support or even

indicate an alternate set of facts in which Houston did not commit the crime. This court has

recognized a distinction, in the context of the Schlup actual innocence standard, between evidence

that supports factual innocence and evidence that merely “undermine[s] the state’s case.”

Hubbard, 98 F.4th at 748. A habeas petitioner seeking to pass the Schlup gateway “cannot satisfy

-6- No. 24-3280, Houston v. Davis

the actual-innocence standard [] by undermining the state’s case alone.” Id. 745–48. While the

line between exculpatory evidence and that which merely “undermines” is not always clear, we

are confident this new information, which does not supply any alibi, point to any alternative

perpetrator, or otherwise render the State’s theory of the case impossible, is insufficient. Cf.

House, 547 U.S. at 548 (stating that if the claimant’s “challenge to the State’s case [were] limited

to the questions he has raised” about blood and semen evidence, “other evidence favoring the

prosecution might well suffice to bar relief,” but going on to consider evidence inculpating another

potential perpetrator before declaring the Schlup standard satisfied). A reasonable juror could still

conclude that Houston committed the crime despite his new evidence.

Houston also makes the point that in considering an actual innocence claim, certain rules

are relaxed in favor of the claimant. This is true. Actual innocence is in some ways a powerful

claim. In analyzing and predicting the effect of a petitioner’s new evidence on a hypothetical

finder of fact, the court is not bound by the rules of admissibility that would apply at trial, and the

court may even weigh (and re-weigh) the credibility of testimony in a way that would ordinarily

be impermissible. See Hubbard, 98 F.4th at 744 & n.3 (stating that “the object of the Schlup

standard is to ascertain truth, as opposed to guaranteeing a criminal procedural right”); Schlup, 513

U.S. at 330–31. But it is the evidence itself that must support “a credible claim of actual

innocence” and show that “no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Cleveland, 693 F.3d at 633; Schlup, 513 U.S. at 327. And Houston’s new

evidence does not do that.

AEDPA’s statute of limitation bars consideration of Houston’s constitutional claims, and

we affirm the order of the district court denying his petition for habeas relief.

-7-