In re: Alva E. Campbell, Jr., Movant.
Motion to Remand.
Motion to Authorize the Filing of a Second or Successive
Application for Habeas Corpus Relief.
States District Court for the Southern District of Ohio at
Columbus. No. 2:15-cv-01702-Walter H. Rice, District Judge.
C. Stebbins, FEDERAL PUBLIC DEFENDER, Columbus, Ohio, for
Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Respondent.
Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.
Campbell, Jr., an Ohio prisoner sentenced to death, moves
this court to remand this case to the district court for
initial consideration of his petition for a writ of habeas
corpus filed under 28 U.S.C. § 2254. The warden has
filed a response opposing his motion. Upon review, we deny
jury convicted Campbell of four counts of aggravated murder,
four counts of aggravated robbery, two counts of attempted
kidnapping, and one count each of kidnapping, felonious
assault, escape, and having a weapon under a disability. The
jury recommended that Campbell be sentenced to death. The
trial court adopted this recommendation and sentenced
Campbell accordingly. On direct appeal, the Ohio Supreme
Court affirmed Campbell's convictions, but the court
remanded the case to the trial court for resentencing due to
a procedural error. State v. Campbell, 738 N.E.2d
1178, 1205 (Ohio 2000). On remand, the trial court
resentenced Campbell to death. The Ohio Supreme Court
affirmed this sentence. State v. Campbell, 765
N.E.2d 334, 344 (Ohio 2002).
2005, Campbell filed his first § 2254 petition, alleging
twelve grounds for relief. The district court dismissed his
petition, and this court affirmed that decision. Campbell
v. Bradshaw, 674 F.3d 578, 598 (6th Cir. 2012).
2015, Campbell filed a second § 2254 petition, this time
challenging Ohio's lethal injection protocol. The
magistrate judge ordered that the case be transferred to this
court for initial review because Campbell was attempting to
file a "successive" habeas petition, and the
magistrate judge repeatedly rejected Campbell's
challenges to that order. See Campbell v. Jenkins,
No. 2:15-CV-1702, 2017 WL 1196167 (S.D. Ohio Mar. 31, 2017);
Campbell v. Jenkins, No. 2:15-CV-1702, 2017 WL
978122 (S.D. Ohio Mar. 14, 2017). Campbell appealed this
decision to the district judge, who affirmed the order and
transferred Campbell's petition to us for initial
consideration. Campbell v. Jenkins, No.
2:15-CV-1702, 2017 WL 3524686 (S.D. Ohio Aug. 16, 2017).
a habeas petitioner can file a "second or
successive" § 2254 petition, he must receive
authorization from the court of appeals. 28 U.S.C. §
2244(b)(3)(A); In re Salem, 631 F.3d 809, 812 (6th
Cir. 2011). To obtain this authorization, the petitioner must
make a prima facie showing either that: (1) a new rule of
constitutional law applies to his case that the Supreme Court
made retroactive to cases on collateral review; or (2) a
newly discovered factual predicate exists which, if proven,
sufficiently establishes that no reasonable fact-finder would
have found the petitioner guilty of the underlying offense
but for constitutional error. 28 U.S.C. §§
2244(b)(2) and 2244(b)(3)(C); Magwood v. Patterson,
561 U.S. 320, 330 (2010). In this context, a prima facie
showing means sufficient allegations of fact combined with
some documentation that would warrant fuller exploration in
the district court. Keith v. Bobby, 551 F.3d 555,
557 (6th Cir. 2009).
in limited situations, a § 2254 petition is not
considered "second or successive" within the
meaning of § 2244(b) even though the petitioner filed a
previous habeas application. See Storey v.
Vasbinder, 657 F.3d 372, 376 (6th Cir. 2011). Under
§ 2244(b), the phrase "second or successive"
is not self-defining. Panetti v. Quarterman, 551
U.S. 930, 943 (2007); Salem, 631 F.3d at 812.
Rather, it is a term of art given substance by the Supreme
Court's habeas cases. Slack v. McDaniel, 529
U.S. 473, 486 (2000); Salem, 631 F.3d at 812. For
example, a habeas petition is not considered "second or
successive" under § 2244(b) when the claim has been
raised in a prior petition, but dismissed as unripe, although
other claims in the initial petition were decided on the
merits. Stewart v. Martinez-Villareal, 523 U.S. 637,
643-46 (1998). Even if the claim was not presented in an
earlier petition, a subsequent petition raising the claim
does not constitute a "successive" petition for
purposes of § 2244(b) if the claim would have been
dismissed as unripe in the initial petition.
Panetti, 551 U.S. at 945. Nor do the successive
petition restrictions apply if the first petition was
dismissed for lack of exhaustion. Slack, 529 U.S. at
478, 487. The restrictions also do not apply if an
intervening state court judgment (such as a resentencing)
occurred after the first habeas petition was decided.
Magwood, 561 U.S. at 335, 339; King v.
Morgan, 807 F.3d 154, 157 (6th Cir. 2015). This court
reviews de novo the question of whether Campbell's
current petition is "second or successive" within
the meaning of § 2244(b). See Lang v. United
States, 474 F.3d 348, 351 (6th Cir. 2007).
undisputed that Campbell is attempting to challenge the same
state-court judgment as in his prior § 2254 petition.
Thus, a federal habeas court must consult abuse-of-the-writ
principles, as modified by the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), to determine whether
Campbell's current petition is "second or
successive." See Askew v. Bradshaw, 636
Fed.Appx. 342, 347 (6th Cir. 2016). Under pre-AEDPA caselaw,
a petitioner abused the writ by raising a claim in a
subsequent petition that could have been raised in an earlier
petition, regardless of whether the failure resulted from
inexcusable neglect or a deliberate choice. McCleskey v.
Zant, 499 U.S. 467, 489 (1991).
maintains that his current claims are properly raised in a
habeas proceeding. Because the law on this subject is not
clear and has been the subject of several recent, published
decisions by this Circuit and ...