In Re Gregory Lott, Movant , 366 F.3d 431 ( 2004 )

ORDER AUTHORIZING THE DISTRICT COURT TO CONSIDER SECOND APPLICATION FOR A BRADY, ACTUAL INNOCENCE, GATEWAY CLAIM

The petitioner, Lott, scheduled to be executed April 27, 2004, in Ohio, has applied for an Order under 28 U.S.C. § 2244(b) (pertaining to “second or successive habeas corpus” petitions), directing the district court to consider his actual innocence claim based on evidence withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He has made the requisite “prima facie showing” under 28 U.S.C. § 2244(b)(3)(C). The application is granted and the execution stayed pending adjudication of the claim in the district court. The district court is authorized to consider the application.

The Brady claim (not tied to the actual innocence aspect of the claim) was presented in Lott’s first federal habeas 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 raised in state court the specific objection he raises today, and thus we are foreclosed from reviewing it”). We interpreted Ohio state law to create an adequate and independent state 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 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 merits of the petitioner’s Brady claim or his actual innocence claim.

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 1265579 (Ohio Ct.App. May 30, 2002). The state court fully adjudicated the constitutional merits of the Brady claim, discussing at length the facts on the merits and deciding the merits against the petitioner.

Thus, this current application for a second federal petition is, if granted, the first time in a federal court that the “factual predicate” for the constitutional claim would be recognized and adjudicated. Although the “factual predicate” for the claim was discovered prior to the adoption of AEDPA, when new stringent requirements were first imposed in death cases, this is the first time since the adoption of AEDPA that a federal court could consider the merits of the constitutional claim. It is not the fault of Lott or his counsel that this is the first time since AEDPA’s adoption that a federal court could consider the claim on the merits. This means, we believe, that the second petition should be authorized if the petitioner in his application makes simply a “prima facie showing” that the facts underlying the claim “if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).

A “prima facie showing,” as Judge Posner pointed out for the Seventh Circuit, is not a difficult standard to meet:

By “prima facie showing” we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case.

Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997). “Prima facie” in this context means simply sufficient 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 clearly presented in the application before us. Judge Posner’s “tight deadline” point is further reinforced by subsection (b)(3)(E), which states that “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Congress has emphasized the need for quick action by the court without further review.

We conclude that this lenient prima facie standard is met and that the matter should be adjudicated. Lott has made a prima facie showing through documents that the prosecutor of Lott’s case fraudulently failed to disclose at trial that the murder victim, before dying, identified a person with a different skin color from Lott as his assailant. The petitioner Lott has also made a prima facie showing that the victim identified his assailant as someone whom he had seen at his local barber shop and that the prosecutor at trial fraudulently refused to reveal this fact as well. In addition, the petitioner Lott has made a prima facie showing that the prosecutor at trial falsely stated to the court that the instrumentality that caused the victim’s death' — namely, kerosene lamp fluid — 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 petitioner Lott. The petitioner Lott has made a pri-ma facie showing that the victim had a kerosene gas lamp in his home which he used, a lamp that would have used the type of kerosene lamp fluid which caused the victim’s death. Lott has made a prima facie showing that* the prosecutor made statements to the court at trial directly contrary to these facts which he knew to be true in order to use the lamp fluid to prove premeditation, an element required in order for the prosecutor to secure the death penalty. Through the citation and quotation of many Ohio opinions, Lott has also made a prima facie showing that the prosecutor has been guilty of similar misconduct in more than ten other cases.¹

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, 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.

Obviously, the egregious prosecutorial misconduct alleged here, if proved, must be deterred. So long as we value the rule of law, such conduct, if it occurred, cannot be tolerated in any kind of case — much less in death penalty cases.

Accordingly, the application for an Order authorizing the district court to proceed with his application is hereby granted and the execution of Lott is hereby stayed pending adjudication in the district court.

1 . Part of the prima facie case offered on this point is found on page 1 of Lott's application, as follows:

Mr. Lott’s trial prosecutor, Carmen Marino, has a shameful track record of breaking rules to win convictions. See State v. Liberatore, 69 Ohio St.2d 583, 589-90, 433 N.E.2d 561 (1982) ("the prosecutorial blunders in this case are too extensive to be excused.”); State v. Owensby, 1985 WL 8623, 1985 Ohio App. LEXIS 7351, *3 (1985) ("prosecutor's comments clearly outside the bounds of mere 'earnestness and vigor[.]' ”); State v. Heinish, 1988 WL 236144, *19, 1988 Ohio App. LEXIS 3644, *20 (1988) ("Clearly the prosecutor improperly commented on excluded evidence.”); State v. Harris, 1990 Ohio App. LEXIS 5451 (1990) (prosecutorial misconduct found, but harmless); State v. Hedrick, 1990 Ohio App. LEXIS 5647 (1990) (prose-cutorial misconduct by making improper comments on matters outside of record and on defendant’s failure to testify.); State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (1991) (improper comments on the appellant's unsworn statement, the appellant's prior convictions, and mitigating factors held harmless.); State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993) (presenting an "aggravated example” of prosecuto-rial misconduct); State v. D’Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993) (prosecutorial misconduct found, but either waived or harmless); State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993) (prosecutorial misconduct "[rose] to the level of being constitutional errors."); State v. Matthews, 1999 WL 135264, *2, 1999 Ohio App. LEXIS 896, *5 (1999) (prosecutor denied making a deal with witnesses, however, "[t]here is ample evidence to suggest that [the witness] at least did in fact receive just what the assistant county prosecutor said he would not give him.”); State v. Larkins, 2003 WL 22510579 (Nov. 6 2003), Cuyahoga App. No. 82325, unreported (affirming grant of new trial upon finding that Marino withheld eyewitness descriptions not matching Larkin; hid a deal he 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).