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Sixth Circuit: Evidence Withheld by Prosecutor Opens Door for Successive Habeas Petition

by Dale Chappell

After the discovery that the prosecution withheld key pieces of evidence that may have exonerated a man convicted and sentenced to death, the U.S. Court of Appeals for the Sixth Circuit held that this was enough to reopen the door for federal habeas corpus, despite the strict bar on second or successive petitions.

Kareem Jackson was convicted of aggravated murder, robbery, kidnapping, and assault and was sentenced to death. Over a decade later, after all his criminal appeals and numerous attempts at postconviction relief had failed, Jackson discovered the prosecution had withheld key evidence that he argued would have cast enough doubt in his case that he would not have been convicted. Specifically, Jackson claimed that the police suppressed evidence that a key eyewitness described a different person who didn’t match Jackson’s description and that law enforcement intimidated and coerced another witness to testify that Jackson had confessed to the murder.

Jackson filed another habeas petition, under 28 U.S.C. § 2254, in the U.S. District Court for the Southern District of Ohio based on these claims, but the court transferred his petition to the Sixth Circuit as a “second or successive” petition that requires the Court of Appeals’ approval before the district court could hear it. Two issues were before the Sixth Circuit: (1) whether Jackson’s petition filed in the district court relying on new evidence was in fact successive and (2) if so, whether he met the strict standard for authorization to file a successive petition.

Jackson’s Petition Was Properly Transferred to the Court of Appeals

If Jackson’s petition was not truly a successive petition, then his motion to remand the petition to the district court could have been granted to allow that court to hear his claims without approval from the Sixth Circuit. This would have been the easiest resolution and one that Jackson argued for, but the court rejected this argument.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecution must turn over all favorable evidence to the defense, even if the defense doesn’t ask for it. Failure to do so, the Court said, constitutes a violation of the Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. A Brady violation would seemingly be sufficient to allow a new challenge to a conviction, regardless of how long ago it occurred. And that was the case—until the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

The AEDPA created several obstacles to federal habeas relief for prisoners. One of those obstacles is the near-absolute bar on “second or successive” petitions. But there is a narrow exception to this bar for newly discovered evidence that would lead to actual innocence. Under 28 U.S.C. § 2244(b)(2)(B), a federal court cannot hear a successive habeas claim based on newly discovered facts, unless: “(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

Jackson argued that because his claim wasn’t “ripe” until he discovered that the prosecution withheld evidence, it was not a “successive” claim barred by the AEDPA. He cited Panetti v. Quarterman, 551 U.S. 930 (2007), in which the Supreme Court ruled that a claim of incompetency that would prevent execution didn’t become “ripe” until execution was imminent, many years after a conviction, and so wasn’t barred by the AEDPA.

However, the Sixth Circuit ruled in In re Wogenstahl, 902 F.3d 621 (6th Cir. 2018), that a Brady violation is not an exception to AEDPA’s bar on successive habeas petitions, and such petitions must meet the high bar under § 2244(b)(2)(B). Citing this case, the Court found that Jackson’s Brady claims were successive and denied his motion for a remand.

Jackson Met the Strict AEDPA Criteria to File a Successive Petition

While Jackson’s claims were barred by the AEDPA’s prohibition on successive habeas petitions, the Court concluded that he had met the strict criteria for the exception to that bar. As to the evidence that the key witness identified a suspect who did not meet Jackson’s description, the Court found that this exculpatory evidence was first disclosed by the State in recent clemency-related public records. This was the first time Jackson was aware of the evidence. And the coerced-witness evidence was also found by the Court to be suppressed and could not have been discovered earlier by Jackson. Therefore, the Court concluded that he made a prima facie showing that he could not have discovered the “factual predicate” for his claim earlier to meet § 2244(b)(2)(B)(i)’s requirement.

As to the second requirement, the Court found Jackson established that had the evidence been disclosed he would have been acquitted. In order to prove a Brady violation, “[1] the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the state, either willfully or inadvertently; and [3] prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668 (2004).

Jackson proved the first two prongs, but he also had to show that “but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense” in order to meet the “prejudice” prong. In evaluating a Brady claim, “a court must consider the materiality of withheld evidence only by evaluating the evidence collectively, not item by item,” according to the Court. Hughbanks v. Hudson, 2 F.4th 527 (6th Cir. 2021). This includes all the evidence and not just the evidence withheld.

The Court considered all of the evidence, even a witness’ statement who did not testify that matched the first witness’ description of someone other than Jackson as the shooter. Considering the totality of the evidence, the Court ruled that Jackson at least made a prima facie showing that his claims also met the second part of the AEDPA’s exception to the successive petition bar. § 2244(b)(3)(C).

Accordingly, the Court granted Jackson permission to file his proposed habeas petition in the district court. See: In re Jackson, 12 F.4th 604 (6th Cir. 2021). 

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