In Re: Gregory Lott v.

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 23, 2004
• Docket: 04-3462
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 In re Lott No. 04-3462 ELECTRONIC CITATION: 2004 FED App. 0120P (6th Cir.) File Name: 04a0120p.06 stayed pending adjudication of the claim in the district court. The district court is authorized to consider the application. UNITED STATES COURT OF APPEALS The Brady claim (not tied to the actual innocence aspect of the claim) was presented in Lott’s first federal habeas FOR THE SIXTH CIRCUIT petition, but we ruled that the claim was procedurally barred _________________ and did not reach the constitutional merits of the claim. Lott v. Coyle, 261 F.3d 594, 619 (6th Cir. 2001) (“Lott never In re: GREGORY LOTT , X raised in state court the specific objection he raises today, and Movant. - thus we are foreclosed from reviewing it”). We interpreted - Ohio state law to create an adequate and independent state - No. 04-3462 ground precluding the federal court from reaching the claim. - Id. at 617-19. As to the “actual innocence” or “miscarriage of > justice” aspect of the claim, we concluded that “since the , N issue may now be pending in state court and has not been fully briefed before us, we reach no final conclusion....” Id. at 619. Thus, no federal court has decided the constitutional Filed: April 22, 2004 merits of the petitioner’s Brady claim or his actual innocence claim. Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges. After our opinion, the Ohio courts did in fact reach the Brady claim on the merits based on a second petition for post- _________________ conviction relief filed in state court. State v. Lott, Nos. 79790, 79791, 79792, 2002 WL 1255579 (Ohio Ct. App. May ORDER AUTHORIZING THE DISTRICT COURT 30, 2002). The state court fully adjudicated the constitutional TO CONSIDER SECOND APPLICATION FOR A merits of the Brady claim, discussing at length the facts on the BRADY, ACTUAL INNOCENCE, GATEWAY merits and deciding the merits against the petitioner. CLAIM _________________ Thus, this current application for a second federal petition is, if granted, the first time in a federal court that the “factual The petitioner, Lott, scheduled to be executed April 27, predicate” for the constitutional claim would be recognized 2004, in Ohio, has applied for an Order under 28 U.S.C. and adjudicated. Although the “factual predicate” for the § 2244(b) (pertaining to “second or successive habeas corpus” claim was discovered prior to the adoption of AEDPA, when petitions), directing the district court to consider his actual new stringent requirements were first imposed in death cases, innocence claim based on evidence withheld in violation of this is the first time since the adoption of AEDPA that a Brady v. Maryland, 373 U.S. 83 (1963). He has made the federal court could consider the merits of the constitutional requisite “prima facie showing” under 28 U.S.C. claim. It is not the fault of Lott or his counsel that this is the § 2244(b)(3)(C). The application is granted and the execution first time since AEDPA’s adoption that a federal court could consider the claim on the merits. This means, we believe, that

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the second petition should be authorized if the petitioner in of Lott’s case fraudulently failed to disclose at trial that the his application makes simply a “prima facie showing” that the murder victim, before dying, identified a person with a facts underlying the claim “if proven and viewed in the light different skin color from Lott as his assailant. The petitioner of the evidence as a whole, would be sufficient to establish by Lott has also made a prima facie showing that the victim clear and convincing evidence that, but for constitutional identified his assailant as someone whom he had seen at his error, no reasonable fact finder would have found the local barber shop and that the prosecutor at trial fraudulently applicant guilty of the underlying offense.” 28 U.S.C. refused to reveal this fact as well. In addition, the petitioner § 2244(b)(2)(B)(ii). Lott has made a prima facie showing that the prosecutor at trial falsely stated to the court that the instrumentality that A “prima facie showing,” as Judge Posner pointed out for caused the victim’s death — namely, kerosene lamp fluid — the Seventh Circuit, is not a difficult standard to meet: was not present in the victim’s house and had to be brought into the house for the purpose of killing the victim by the By “prima facie showing” we understand (without petitioner Lott. The petitioner Lott has made a prima facie guidance in the statutory language or history or case law) showing that the victim had a kerosene gas lamp in his home simply a sufficient showing of possible merit to warrant which he used, a lamp that would have used the type of a fuller exploration by the district court. All that we kerosene lamp fluid which caused the victim’s death. Lott usually have before us in ruling on such an application, has made a prima facie showing that the prosecutor made which we must do under a tight deadline (see 28 U.S.C. statements to the court at trial directly contrary to these facts § 2244(b)(3)(D)), is the application itself and documents which he knew to be true in order to use the lamp fluid to required to be attached to it, consisting of the previous prove premeditation, an element required in order for the motions and opinions in the case. prosecutor to secure the death penalty. Through the citation and quotation of many Ohio opinions, Lott has also made a Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997). prima facie showing that the prosecutor has been guilty of “Prima facie” in this context means simply sufficient similar misconduct in more than ten other cases.1 allegations of fact together with some documentation that would “warrant a fuller exploration in the district court.” Those allegations of fact, together with documentation, are 1 clearly presented in the application before us. Judge Posner’s Part of the prima facie case offered on this point is found on page 1 “tight deadline” point is further reinforced by subsection of Lott’s application, as follows: (b)(3)(E), which states that “the grant or denial of an Mr. Lott’s trial prosecutor, Ca rmen M arino, has a shameful track authorization by a court of appeals to file a second or record of breaking rules to win conviction s. See State v. successive application shall not be appealable and shall not be Liberato re, 69 Ohio St. 2d 583 , 589-90 (1982) (“the the subject of a petition for rehearing or for a writ of prosecutorial blunders in this case are too extensive to be certiorari.” Congress has emphasized the need for quick excused.”); State v. Owensby, 198 5 O hio App. L EX IS 73 51, *3 (1985) (“prosecuto r’s com ments clearly outside the bounds of action by the court without further review. mere ‘earnestness and vigo r[.]’”); State v. Heinish, 198 8 O hio App. LEX IS 3644, *20 (19 88) (“Cle arly the prosecutor We conclude that this lenient prima facie standard is met imprope rly commented on exclud ed ev idenc e.”); State v. Ha rris, and that the matter should be adjudicated. Lott has made a 1990 Ohio App . LEXIS 5451 (1990) (prosecutorial misconduct prima facie showing through documents that the prosecutor found , but harmless); State v. Hedrick, 1990 O hio App. LEX IS 5647 (1990) (prosecutorial misconduct by making improper No. 04-3462 In re Lott 5 6 In re Lott No. 04-3462

Taking the evidence as a whole, we conclude that ______________ petitioner’s application makes a prima facie showing of constitutional Brady error that, if proved in the district court, DISSENT may be sufficient to cause the fact finder to reach the ______________ conclusion beyond a reasonable doubt that the petitioner was not guilty of premeditatedly murdering the victim. BOGGS, Chief Judge, dissenting. After a thorough review of the record, I can discern no legal basis upon which we Obviously, the egregious prosecutorial misconduct alleged could, much less should, grant Lott’s request for here, if proved, must be deterred. So long as we value the consideration of a second habeas petition. Therefore, I rule of law, such conduct, if it occurred, cannot be tolerated respectfully dissent. in any kind of case — much less in death penalty cases. Lott appealed to this court the denial of his first petition for Accordingly, the application for an Order authorizing the habeas relief, and this panel affirmed. Lott v. Coyle, 261 F.3d district court to proceed with his application is hereby granted 594 (6th Cir. 2001). Any disposition of a habeas petition on and the execution of Lott is hereby stayed pending the merits, including dismissing on the grounds of procedural adjudication in the district court. default, means that a defendant has exhausted his unrestricted right to petition for habeas relief. In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Harvey v. Horan, 278 F.3d 370, 379 -80 (4th Cir. 2002) (citing cases from the Second, Fifth, and Tenth Circuits). The requirements for a successive habeas petition are strict and Lott cannot meet them. com ments on matters outside of record and on defendant’s The Antiterrorism and Effective Death Penalty Act failure to testify.); State v. Durr, 58 Ohio St. 3d 86 (1991) (improper com ments on the appellant’s unsworn statement, the (AEDPA) governs any subsequent petition for habeas relief; app ellant’s prior convictions, and mitiga ting factors held the relevant part of the statute states: harmless.); State v. Keenan, 66 Ohio St. 3d 402 (1993) (b)(1) A claim presented in a second or successive (presenting an “aggravated example” of prosecutorial misconduct); State v. D’Am brosio, 67 Ohio St. 3d 185 (1993) habeas corpus application under section 2254 that was (prosecutorial misconduct found, but either waived or harmless); presented in a prior application shall be dismissed. State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993) (pro secuto rial misconduct “[rose] to the level of being (2) A claim presented in a second or successive habeas constitutional errors.”); State v. Matthews, 1999 Ohio App. corpus application under section 2254 that was not LEX IS 896 , *5 (19 99) (prosecuto r denied making a deal with presented in a prior application shall be dismissed witnesses, however, “[t]here is ample evidence to suggest that unless— [the witness] at least did in fact receive just what the assistant county prosecutor said he would not give him.”); State v. Larkins (A) the applicant shows that the claim relies on a new (Nov. 6 2003), Cuyahoga App. No. 82325, unreported rule of constitutional law, made retroactive to cases on (affirming grant of new trial upon finding that Marino withheld collateral review by the Supreme Court, that was eyewitness descriptions not matching Larkin; hid a deal he previously unavailable; or struck to obtain the testimony of the only claimed eyewitness; then stood silent as she lied about the deal and her criminal record during trial). No. 04-3462 In re Lott 7 8 In re Lott No. 04-3462

(B)(i) the factual predicate for the claim could not have effect of the confession.”) (emphasis added). Nothing in the been discovered previously through the exercise of due case law or statute suggests that our opinion was insufficient diligence; and to constitute adjudication of Lott’s first habeas petition and (ii) the facts underlying the claim, if proven and viewed therefore relieve him of the burdens that AEDPA imposes. in light of the evidence as a whole, would be sufficient to If we truly did “not reach the constitutional merits” of establish by clear and convincing evidence that, but for Lott’s actual innocence claim, the court’s theory creates a constitutional error, no reasonable factfinder would have clear mechanism for an end-run around the high bar of found the applicant guilty of the underlying offense. § 2244. This order, resting as it does on our procedural, 28 U.S.C. § 2244 (b)(1)-(2). rather than factual basis for a part of our ruling in Lott’s first appeal, means that a panel can give a capital defendant Lott briefed his Brady and actual innocence claims in his exactly what AEDPA prohibits – two bites at the apple first appeal of the habeas denial to this court. Appellant Br., without actually having to meet AEDPA’s standards for a Lott v. Coyle, No. 99-4155, at 32 (Brady), 44 (actual successive petition, simply by failing to rule on the factual innocence). Therefore, under 28 U.S.C. § 2244(b)(1), he merits of some claim. cannot present them again. I question the assertion in the order that this current petition is “the first time in a federal For instance, the majority never really says that Lott met court that the ‘factual predicate’ for the constitutional claim the due diligence standard of § 2244(b)(2)(B)(i), it just slides would be recognized and adjudicated.” (Maj. Op. at 2). It is around it by saying that this petition would be “the first time worth clarifying that the “factual predicate” for actual in a federal court that the ‘factual predicate’ for the innocence is exactly the same as the Brady claim: primarily constitutional claim would be recognized and adjudicated,” the victim’s description of his assailant. This issue was though the majority immediately thereafter concedes that the briefed in the original case; this panel considered the variance evidence was discovered long ago. (Maj. Op. at 2). in description in its original opinion. Lott, 261 F.3d at 618. Lott has made no showing of a new rule of constitutional The extent to which we “could” consider Lott’s constitutional law, and therefore 28 U.S.C. § 2244(b)(2)(A) is not an avenue claims has not changed between his two petitions. We could of relief that is open to him. consider his Brady claim in our earlier adjudication, did so, Although Lott argues that his actual innocence claim is and found it procedurally defaulted. predicated on evidence that the prosecution withheld and was We also could consider his actual innocence claim in 2001, not available to the three-judge panel that convicted and did so, and expounded upon it at length in dicta. We sentenced him, the evidence came to light in 1991. Lott has ultimately decided that we could not reach an adequate had procedural difficulties getting the evidence before the conclusion because of insufficient evidence in the record courts, because his initial appellate lawyer chose not to about a confession that Lott had made, which was suppressed introduce it. However, the standard here is evidence that because of a Miranda violation. Id. at 620-21. We simply “could not” have been discovered with due diligence. Not declined to decide whether Lott’s confession would preclude only could the evidence here have been discovered, it was. an actual innocence claim; we did not conclude that the claim Clause (b)(2)(B)(i) is not satisfied. itself was beyond our purview. Id. at 621 (“Since this issue In sum, we are presented with a petition for successive may now be pending in state court and has not been fully habeas that does not meet the criteria of the statute governing briefed before us, we reach no final conclusion regarding the No. 04-3462 In re Lott 9 10 In re Lott No. 04-3462

consideration of such claims. We have no legal basis on with new reliable evidence”). No matter how strenuous the which to grant it. rhetoric of condemnation of the prosecutor here, it is no Even if I could be persuaded to ignore the statute, I can see substitute for compliance with AEDPA. no interpretation of the evidence in question that would “be I will address briefly the evidentiary claims that Lott claims sufficient to establish by clear and convincing evidence that, entitles him to bring a second habeas petition. but for constitutional error, no reasonable factfinder would Discrepancies in Description have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). This is the test we must apply, The victim was able to describe his assailant as an African- rather than the much lower standard that the majority uses: American man with long hair, a medium build, light skin, “sufficient to cause the fact finder to reach the conclusion who wore a light-colored shirt, grayish tennis shoes, and a cap beyond a reasonable doubt that the petitioner was not guilty without a bill. When Lott was arrested, he had short hair and of premeditatedly murdering the victim.” (Maj. Op. at 5). medium to dark skin tone. Since two weeks had passed Compare House v. Bell, 311 F.3d 767, 778, n.4 (6th Cir. between the assault and Lott’s arrest, he had ample 2002) (en banc) (Merritt, J.) (“Scholastic arguments aside, opportunity to cut his hair; in fact, his hair is so short in the surely no one would really hold the view that House should photo taken when he was booked that one could easily be executed if 99 of 100, or even 50 of 100, jurors would now conclude that he had very recently visited his barber. The seriously doubt the persuasiveness of the state's case. In the police found tennis shoes matching the victim’s description real world of nonhypothetical juridical minds, only a new trial in Lott’s car. A sole print at the crime scene is at least with real jurors will resolve such a problem.”) with House, consistent with that shoe, although not a confirmed match. 311 F.3d at 783 (Boggs, J., dissenting) (“the Schlup standard The victim said his assailant was 5' 10"; Lott is 6 feet. I find ‘does not merely require a showing that a reasonable doubt that a remarkably good guess, given McGrath’s vantage point: exists in light of the new evidence, but rather that no tied up on the floor. reasonable juror would have found the defendant guilty.’” That leaves only the difference of opinion between the Schlup, 513 U.S. at 329, 115 S.Ct. 851. . . . [T]he court's shade of Lott’s skin. The petitioner emphasizes that no make- opinion expresses the court's belief that House's sentence up was ever found to support the speculation that Lott must be overturned if ‘even 50 of 100 ... jurors would now lightened his skin as part of a disguise. I agree that seems seriously doubt the persuasiveness of the state's case.’ . . . unlikely. However, the victim was an 80-year-old man who However, it is as clear as the English language can make it was on the floor, under attack, even on fire, when he observed that this is not the standard stated by Justice Stevens in the his assailant. Therefore his perception of light skin may have quotation above.”). been inaccurate. In any case, this remains the only Prosecutorial misconduct is a separate issue and cannot be discrepancy that cannot be readily explained; by no stretch of used to bolster a weak claim of actual innocence. Such the imagination could one assert that no reasonable factfinder misconduct can constitute the prerequisite constitutional would have convicted, even had that contradiction been in the violation for a claim for relief under Schlup v. Delo, but the record. petitioner cannot rely on that malfeasance to build an Lott argues in his brief that McGrath was not able to inference of actual innocence. Schlup v. Delo, 513 U.S. 298, identify Lott from the composite sketch. Police reports 324 (1995) (explaining that a petitioner asserting actual indicate that McGrath was not coherent at the time he was innocence must “support his allegations of constitutional error shown the sketch, fell asleep in the middle of the interview, No. 04-3462 In re Lott 11 12 In re Lott No. 04-3462

and in fact died a few hours later. It can hardly be said that grounds on which to consider his case further. I respectfully the discrepancy is so compelling that no reasonable factfinder dissent from the grant of permission to file a new habeas would convict based on all the other trial evidence, not to petition, and the attendant stay of execution. I also dissent mention the suppressed confession which must be weighed in from our apparently limitless stay of execution despite the assessing an actual innocence claim. matter’s being remitted to activity in the district court. Kerosene Oil Lott emphasizes in his petition that the prosecutor lied at ENTERED BY ORDER OF THE COURT his trial when he told the judges that McGrath did not own an oil lamp and that Lott must have brought the oil used to burn McGrath with him, showing his intent to murder the victim. /s/ Leonard Green The origin of the oil is immaterial to Lott’s claim of actual _____________________________ innocence. Assuming that McGrath owned the oil, it was available to Lott, who used it in his attack on the victim. Clerk Were this an argument about prosecutorial misconduct in the penalty phase of a capital trial, I would see the relevance. In this context, I cannot draw any inference from the oil that indicates Lott’s innocence. Lott has fallen far short of the requirement of producing “clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). The initially-suppressed evidence, which boils down to a contradiction over skin tone, and false statement about the origin of the oil used to burn the victim, also cannot reach the standard enunciated in Schlup v. Delo: “the habeas petitioner [must] show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’ . . . To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo 513 U.S. 298, 327 (1995) (citation omitted). See Herrera v. Collins 506 U.S. 390, 417 (1993) (“[T]he threshold showing for such an assumed right [not to be executed if actually innocent] would necessarily be extraordinarily high.”). Lott has not made a prima facie case of actual innocence nor shown that a constitutional violation is the cause of his conviction. Therefore, this panel has no