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Hall v. Bell

United States District Court, E.D. Tennessee

December 3, 2019

LEE HALL, Petitioner,
RICKY BELL, Warden, Respondent.


          Clifton L. Corker, United States District Judge.

         On December 2, 2019, Petitioner Lee Hall - whose execution is scheduled for December 5, 2019 - filed a “Second Petition for Writ of Habeas Corpus” pursuant to 28 U.S.C. § 2254 [Doc. 1], as well as a Motion for a Stay of Execution [Doc. 6]. In light of the urgency of this matter, the Court ordered Respondent to file an immediate response to the Motion to Stay [Doc. 9], and Respondent has now filed his response in opposition [Doc. 10]. For the reasons stated herein, the Court concludes that it lacks jurisdiction over both Petitioner's § 2254 Petition and his Motion to Stay. The Court will immediately TRANSFER this case in its entirety to the United States Court of Appeals for the Sixth Circuit for its consideration as to whether to grant Petitioner leave to file a second or successive habeas corpus petition under 28 U.S.C. § 2254, as well as for consideration of Petitioner's Motion to Stay his December 5, 2019 execution.

         As an initial matter, Petitioner filed his first Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 on October 18, 2006 [See Hall v. Bell, E.D. Tenn. Case No. 2:06-cv-56, Doc. 12]. On March 11, 2010, the District Court dismissed the Petitioner's § 2254 petition in a 127-page memorandum opinion [See Hall v. Bell, E.D. Tenn. Case No. 2:06-cv-56, Doc. 85]. On December 2, 2019, the Petitioner filed the instant “Second Petition, ” raising claims related to juror bias.

         Petitioner's second petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), which provides in relevant part that:

         A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(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.

28 U.S.C. § 2244(b)(2); see also Magwood v. Patterson, 561 U.S. 320, 335 (2010) (clarifying that the phrase “second or successive” in the AEDPA applies to “applications” for habeas relief, rather than to specific claims). If a federal habeas petitioner wishes to pursue such a “second or successive” petition in the district court, he must first move for (and obtain) an order authorizing the district court to consider the motion in the United States Court of Appeals for the Sixth Circuit. 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147 (2007) (holding that district court lacks jurisdiction to consider a second or successive petition with prior approval under § 2244(b)(3)(A)).

         There is no dispute that the Court has not received an order from the Sixth Circuit authorizing the Court to consider this second petition. Given that Petitioner has titled his filing a “Second Petition” for habeas corpus relief pursuant to § 2254, it would appear on first glance that the Court lacks jurisdiction over this matter. However, “second or successive” is a term of art, and not every “numerically second” petition is second or successive under the AEDPA. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007) (“The Court has declined to interpret ‘second or successive' as referring to all § 2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior [] application.”). For those petitions that are second-in-time but not “second or successive, ” no prior authorization is required from the appellate court. See, e.g., In re Wogenstahl, 902 F.3d 621, 627 (6th Cir. 2018). Accordingly, in order to determine whether it has jurisdiction over this matter, the Court must determine whether the instant Petition is “second or successive” under AEDPA or merely “second-in-time.” See In re Smith, 690 F.3d 809 (6th Cir. 2012) (district court is obligated to make initial determination as to whether petition is second or successive before initiating transfer to appellate court).

         Petitioner argues that his instant Petition for habeas relief, though second-in-time, is not “second or successive” under the AEDPA, and that this Court accordingly has jurisdiction to consider his claims without the need for prior authorization from the Sixth Circuit [Doc. 1 at 15-17]. Specifically, he argues that he did not abandon known claims, but rather was prevented from having a fair opportunity to raise his claims of juror bias in his first habeas petition due to the juror's concealment of and/or failure to disclose the relevant evidence in a timely manner [Id.]. He accordingly argues that because his petition contains claims that are based upon newly discovered evidence and because those claims “could not have been raised” in his first habeas petition, his instant filing is not “second or successive” under the AEDPA [Id.].

         Respondent disputes Petitioner's assessment, arguing that the Petition is clearly second or successive [Doc. 10 at 3-6]. Respondent specifically notes that the new petition concerns the same conviction at issue in the first petition and involves a claim of juror bias, which the Sixth Circuit generally considers a “second or successive” claim due to the fact that the claim challenges events that occurred at the trial stage [Id.]. In short, Respondent argues that the fact that the claim is predicated upon newly discovered evidence that could not reasonably have been discovered with due diligence does not render the claim “newly ripened” or remove it from the limitations associated with filing second or successive challenges [Id.]. Respondent thus maintains that prior authorization for this petition is required from the Sixth Circuit, and that this Court accordingly lacks jurisdiction to consider Petitioner's claims at this stage [Id.].

         There are “only limited exception[s]” to the generally applicable rule that a second-in-time habeas application is a second or successive one under § 2244(b)(2)(B). See Allen v. Mitchell, 757 Fed.Appx. 482, 484 (6th Cir. 2018). The Sixth Circuit has determined that a subsequent petition will not be second or successive if: (1) it asserts a claim whose factual predicate arose after the filing of the original petition; (2) it asserts a ground for relief that was not ripe at the time the initial petition was filed (such as claims for competency to be executed); (3) it is the initial challenge to a specific or new state court judgment; or (4) the first habeas petition was dismissed for failure to exhaust state remedies.[1]In re Wogenstahl, 902 F.3d at 627; see also e.g., Hayward v. Warden, 2019 WL 2058628 (S.D. Ohio May 9, 2019) (failure to exhaust); Askew v. Bradshaw, 636 Fed.Appx. 342');">636 Fed.Appx. 342 (6th Cir. 2016) (new state court judgment); Magwood v. Patterson, 561 U.S. ...

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