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In re Campbell

United States Court of Appeals, Sixth Circuit

October 25, 2017

In re: Alva E. Campbell, Jr., Movant.

         On Motion to Remand.

         On Motion to Authorize the Filing of a Second or Successive Application for Habeas Corpus Relief.

         United States District Court for the Southern District of Ohio at Columbus. No. 2:15-cv-01702-Walter H. Rice, District Judge.

         ON MOTION:

          David C. Stebbins, FEDERAL PUBLIC DEFENDER, Columbus, Ohio, for Movant.

         ON RESPONSE:

          Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Respondent.

          Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.


          PER CURIAM

         Alva 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 Campbell's motion.


         An Ohio 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).

         In 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).

         In 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).


         Before 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).

         However, 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).

         It is 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).


         Campbell 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 ...

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