United States District Court, S.D. Ohio, Western Division, Cincinnati
SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner,
TODD ISHEE, Warden Respondent.
J. Dlott, District Judge
DECISION AND ORDER
Michael R. Merz United States Magistrate Judge
capital habeas corpus case, arising out of the 1993 prison
riot at Southern Ohio Correctional Facility (Lucasville), is
before the Court on Petitioner Siddique Abdullah Hasan's
Motion to Amend, for Additional Discovery, an Evidentiary
Hearing, or to Stay and Abey Proceedings to Allow Exhaustion
of Newly Discovered Claim. (ECF No.185.) The Warden has responded
(ECF No. 188), and Hasan has filed his Reply (ECF No.
172)(see footnote 1) and a Notice of Additional Authority
(ECF No. 173).
Motions at issue are all non-dispositive pre-trial motions
committed in the first instance to the decisional authority
of an assigned Magistrate Judge.
proceedings in the state courts were summarized in this
Court's August 14, 2006, Report and Recommendations (ECF
No. 81, PageID 1061-63), as follows:
On April 22, 1997, Hasan filed his appellate brief in the
Court of Appeals for Hamilton County, Ohio, advancing thirty
assignments of error. Hasan's motion to strike the brief
and appoint new counsel was denied by the court of appeals. A
supplemental brief was filed by Hasan's counsel
supplementing his fifth and eighth assignments of error and
adding twelve new assignments of error on September 2, 1997,
three days past the deadline set by the court of appeals.
Moreover, Hasan was not provided with a copy of his trial
transcript until September 18, 1997. None of Hasan's
claims succeeded, and the court of appeals affirmed the trial
court on May 1, 1998.
On September 15, 1998, Hasan filed his appellate brief in the
Ohio Supreme Court claiming error in forty-four propositions
of law. On January 5, 2000, lead counsel in Hasan's case,
Chuck Stidham, was suspended from the practice of law for
various ethical breaches committed in cases in which he was
retained between 1994 and 1998, and for misrepresenting the
nature and name of his law firm in violation of Ohio
Disciplinary Rules 2-102(B) and (C). Cincinnati Bar
Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977
(2000). The Ohio Public Defender's Office was appointed
to represent Hasan following Stidham's removal from the
case, and a new briefing schedule was set.
On July 21, 2000, Hasan filed a superseding appellate brief
advancing thirty-four propositions of law. The Supreme Court
of Ohio rejected Hasan's claims of error, and affirmed
the court of appeals on July 18, 2001. State v.
Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90 (2001). A
subsequent motion to reconsider was similarly rejected. On
April 29, 2002, the United States Supreme Court denied
Hasan's petition for a writ of certiorari.
In the meantime, Hasan was also pursuing post-conviction
relief in the state courts, filing his first petition for
post-conviction relief in the Hamilton County Court of Common
Pleas on July 23, 1997. The trial court denied each of
Hasan's thirty-nine claims for relief and granted the
State's motion to dismiss the petition on February 3,
1998. Hasan took an appeal to the Court of Appeals for
Hamilton County, advancing twenty-five assignments of error.
The court of appeals affirmed the dismissal, State v.
Sanders, No. C-980154, 1999 WL 162146 (Ohio App. 1st
Dist. Mar. 26, 1999), and no further appeal was taken in the
Ohio Supreme Court.
A second petition for post-conviction relief was filed by
Hasan on May 1, 2001, in which he alleged forty-two claims of
error. On January 15, 2002, the trial court dismissed the
second petition, concluding that Hasan had failed to satisfy
the mandatory requirements of Ohio Rev. Code §§
2953.23(A)(1) and (2). (Appendix, Vol. 6-C at 309.)
Hasan's appeal was denied in the court of appeals,
State v. Sanders, No. C020077, 2002 WL 31127540
(Ohio Ct.App. 1st Dist. Sept. 27, 2002), and the Ohio Supreme
Court declined review, State v. Sanders, 98 Ohio
St.3d 1423, 782 N.E.2d 78 (2003).
to Reopen Direct Appeal
Concurrent with his post-conviction proceedings, Hasan also
pursued an Ohio R.App. Proc. 26(B) application to reopen his
direct appeal on account of his appellate counsels' [sic]
ineffectiveness, allegedly illustrated by their failure to
raise as error twenty-four assignments of error. The court of
appeals denied Hasan's application, and the Ohio Supreme
Court affirmed and denied reconsideration.
April 22, 2003, Hasan filed his Petition for a Writ of Habeas
Corpus in this Court, raising thirty-five grounds for relief.
(ECF No. 16.) Following Respondent's filing of the Return
of Writ (ECF No. 17), Hasan moved for discovery and an
evidentiary hearing (ECF No. 21). Oral arguments were held on
the motion (ECF No. 36), which was subsequently granted in
part as to the discovery requested, and denied without
prejudice to its renewal within a specified time as to the
request for an evidentiary hearing (ECF No. 37). Hasan filed
objections (ECF No. 39), which the district judge overruled
(ECF No. 46). Reconsideration was sought, granted, and
Hasan's objections were overruled again (ECF Nos. 48, 53
and 57, respectively). Hasan later filed a second motion for
reconsideration (ECF No. 79), which was denied as moot
following this Court's issuance of its Report and
Recommendations (See ECF No. 81 and Notation Order dated
August 29, 2006).
filed a second motion for discovery in April 2006 (ECF No.
72), which was also denied (ECF No. 75) then appealed (ECF
No. 76); restated, expanded, and subsumed in Hasan's
Additional Briefing Per Court's December 18, 2006, Order
(ECF No. 110) following filing of this Court's Report and
Recommendations (ECF No. 81); and finally granted in part on
November 17, 2011 (ECF No. 139).
thereafter, the parties filed a joint motion to consolidate
Hasan's case with that of Jason Robb, another Lucasville
case, for purposes of discovery management. (ECF No. 141.)
Explaining that the discovery in both cases involves the same
facts, recognizing that the discovery materials sought in
Hasan's case were similar if not identical to those in
the Robb case, and noting that a third Lucasville
defendant, James Were, had successfully sought to intervene
in Robb to gain access to the discovery materials in
that case, the Court granted consolidation of Hasan's and
Robb's cases for the limited purpose of discovery. (ECF
No. 142.) Upon completion of the granted discovery, Hasan
filed the first version of the instant motion (ECF No. 166),
later refiling it as ECF No. 185.
asserts that his fourth, eighth, ninth, and tenth habeas
corpus grounds for relief have been strengthened as a result
of the materials discovered in these proceedings. He also
presents a new ground for relief, his thirty-sixth, based on
the same discovery material, and asks that this Court stay
his habeas petition to allow him to return to the state court
to exhaust his new claim. Hasan moves to amend his petition
to include the new evidence and claim, for additional
discovery, and for an evidentiary hearing as well.
of the Record
expansion of the record is used to achieve the same end as an
evidentiary hearing, the petitioner ought to be subject to
the same constraints that would be imposed if he had sought
an evidentiary hearing.” Boyko v. Parke, 259
F.3d 781, 790 (7th Cir. 2001). Pursuant to the
AEDPA, a prisoner may introduce new evidence in support of an
evidentiary hearing or relief without an evidentiary hearing
"only if [the prisoner] was not at fault in failing to
develop that evidence in state court, or (if he was at fault)
if the conditions prescribed in § 2254(e)(2) were
met." Holland v. Jackson, 542 U.S. 649, 652-53
(2004), citing Williams v. Taylor, 529 U.S. 420,
limitation in Cullen v. Pinholster, 563 U.S. 170
(2011), where the Supreme Court held that federal habeas
review of state court merits determinations is limited to the
record that was before the state court, applies to expansion
of the record as well as to evidentiary hearings. Moore
v. Mitchell, 708 F.3d 760, 780-784 (6th Cir.
2013). Moore explained that
In any event, expansion of the record does not necessarily
require that the district court consider that evidence in
evaluating the merits of the habeas claim. Expansion of the
record can assist the district court in deciding other issues
besides the merits of the claim. . . . For example, it can
sometimes be necessary to see if a petitioner has met the
diligence requirement of § 2254(e)(2) for claims not
adjudicated on the merits by the state court.
Moore, 708 F.3d at 784. This Court has very recently
noted, however, that
A claim of actual innocence offered to excuse procedural
default is not a substantive claim for habeas corpus relief,
but a “gateway” claim and therefore not subject
to the Pinholster restrictions.”
Pettus-Brown v. Warden, 2015 U.S. Dist. LEXIS 11884,
*2, 2015 WL 422557 (S.D. Ohio [Feb. 2, ] 2015).
“Pinholster does not by its own terms apply to
the actual innocence exception to either procedural default
or the statute of limitations.” Clemmons v.
Warden, 2012 U.S. Dist. LEXIS 146029, *19, 2012 WL
4811122 (S.D. Ohio [Oct. 10, ] 2012).
Ogle v. Mohr, No. 2:15-cv-776, 2017 WL 951489, *34
(S.D. Ohio Mar. 10, 2017)(Report and Recommendations). Thus,
a petitioner's motion for an expansion of the record may
avoid Pinholster's strictures under such
The Civil Rule governing pleading amendments, Federal Rule of
Civil Procedure 15, made applicable to habeas proceedings by
§ 2242, Federal Rule of Civil Procedure 81(a)(2), and
Habeas Corpus Rule 11,  allows pleading amendments with
“leave of court” any time during a proceeding.
See Fed. Rule Civ. Proc. 15(a). . . . Amendments made after
the statute of limitations has run [must] relate back to the
date of the original pleading . . . [which is to say they
must arise] “out of the [same] conduct, transaction, or
occurrence” [as was originally pleaded]. Rule 15(c)(2).
Mayle v. Felix, 545 U.S. 644, 655 (2005). In
considering whether to grant motions to amend under Rule 15,
a court should consider whether the amendment would be
futile. Colvin v. Caruso, 605 F.3d 282,
294-95 (6th Cir. 2010) citing Crawford v.
Roan, 53 F.3d 750, 753 (6th Cir. 1995).
Likewise, a motion to amend may be denied if it is brought
after undue delay or with dilatory motive. Foman v.
Davis, 371 U.S. 178 (1962); Miller v. United
States, 561 Fed.Appx. 485, 489 (6th Cir.
habeas petitioner is not entitled to discovery as a matter of
course, but only upon a fact-specific showing of good cause
and in the Court's exercise of discretion. Rule 6(a),
Rules Governing § 2254 Cases; Bracy v. Gramley,
520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286
(1969); Byrd v. Collins, 209 F.3d 486, 515-16
(6th Cir. 2000). Before determining whether
discovery is warranted, the Court must first identify the
essential elements of the claim on which discovery is sought.
Bracy, 520 U.S. at 904, citing United States v.
Armstrong, 517 U.S. 456, 468 (1996). The burden of
demonstrating the materiality of the information requested is
on the moving party. Stanford v. Parker, 266 F.3d
442, 460 (6th Cir. 2001), citing Murphy v.
Johnson, 205 F.3d 809, 813-15 (5th Cir.
2000). “Even in a death penalty case, ‘bald
assertions and conclusory allegations do not provide
sufficient ground to warrant requiring the state to respond
to discovery or require an evidentiary hearing.'”
Bowling v. Parker, 344 F.3d 487, 512 (6th
Cir. 2003), quoting Stanford, 266 F.3d at 460.
for an Evidentiary Hearing
the AEDPA, 28 U.S.C. § 2254(e)(2), an evidentiary
hearing is available to a petitioner if
(A) the claim relies on
(i.) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii.) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim 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.
does not request an evidentiary hearing for the purpose of
“establishing by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense, ”
however. Rather, he does so in order to demonstrate his
actual innocence under Schlup v. Delo, 513 U.S. 298
(1986), or post-conviction counsel's ineffective
assistance in an attempt to excuse any procedural default of
the claims herein pursuant to Martinez v. Ryan, 566
U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413
(2013). (ECF No. 185, PageID 13921-22.) It is far from clear,
however, that Martinez and Trevino are
applicable in Ohio.
Sixth Circuit has observed as follows:
In McGuire [v. Warden, 738 F.3d 741
(2013)], we noted that “one could argue that the
category requiring evidence outside the record must
be brought on collateral review in order for review to be
meaningful, suggesting the possibility that the
Martinez exception could apply for that category of
I[neffective] A[ssistance of] [T]rial C[ounsel] claims. 738
F.3d at 751-52. But we also explained that, in the
“ordinary” Ohio case, “ineffective
assistance of [trial] counsel . . . is an issue that can be
brought on direct appeal.” Id. at 752 (quoting
State v. Combs, 100 Ohio App.3d 90 (1994)
(collecting Ohio cases)). “Arguably, then, the review
of trial counsel ineffectiveness claims in Ohio is more
‘meaningful' than Texas [where the Trevino
case originated], because in Ohio there is
‘ordinarily' the availability of direct review with
a constitutionally required counsel, with the back-up of
collateral attack where evidence outside the record is
required.” Id. We chose not to answer the
question [whether Trevino is applicable in Ohio] in
McGuire, as our discussion merely “showe[ed]
that the application of Trevino to Ohio
ineffective-assistance claims is neither obvious nor
inevitable.” Id. We have not answered it
since. See Williams v. Mitchell, 792 F.3d 606, 615
(6th Cir. 2015). We do not do so today. . . .
Hill v. Mitchell, 842 F.3d 910, 937-38 (2016). Most
recently, the Sixth Circuit stated, “This court has not
yet determined whether Trevino applies to cases that
arise in Ohio.” Moore v. Mitchell,
848 F.3d 774, 777 (6th Cir. 2017). Rehearing
en banc was denied in that case on May 3, 2017, and
the United States Supreme Court denied certiorari on January
8, 2018, Moore v. Mitchell, Case No.
17-6239, 2018 WL 311488, 2018 U.S. LEXIS 415 (Jan. 8, 2018).
courts have authority to grant stays in habeas corpus cases
to permit exhaustion of state court remedies in consideration
of the AEDPA's preference for state court initial
resolution of claims. However, in recognizing that authority,
the Supreme Court explained that
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are
plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion
for a district court to deny a stay and to dismiss a mixed
petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
“Staying a federal habeas petition frustrates [the]
AEDPA's objective of encouraging finality by allowing a
petitioner to delay the resolution of federal
proceedings.” Id. at 277.
Ground for Relief
fourth ground for relief in his petition, Hasan argued the
ineffectiveness of his trial counsel due to their failure to
pursue a challenge to the grand jury's composition.
Specifically, he alleged that based on some of the
jurors' having signed a petition advocating application
of Ohio's death penalty statute, those grand jurors who
returned the indictment in his case were biased. Hasan
requests permission to amend his fourth ground to include
reference to evidence previously withheld by the state and
discovered in these habeas proceedings, for additional
discovery, and to supplement the record with the evidence
referenced and discovered. He also asserts that assuming the
evidence could have been found had his post-conviction
counsel exercised due diligence, counsel were ineffective in
not discovering it,  invoking Martinez v. Ryan, 566
U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413
(2013) in an attempt to avoid any procedural
default of his claim.
was indicted on non-capital charges in an indictment returned
December 27, 1993. (ECF No. 166-1, PageID 13650-54.) An
indictment on capital charges followed on July 29, 1994.
Id. at PageID 13655-58. He contends that three grand
jurors signing the non-capital indictment and three signing
the capital indictment also signed a petition advocating as
We the undersigned request and demand that the present
statute of the Death Penalty in the State of Ohio be applied
as the passers intended it to be.
We feel that Governor George V. Voinovich, President of the
Senate Stanley Arnoff [sic], and Speaker of the House Vernal
G. Riffe must accept their responsibility to carry out the
wishes of the Voters of the State of Ohio. Two appeals are
(ECF No. 166-2, PageID 13650-64.) The petition contains no
date, and it does not indicate any particular individual or
case the signers might have had in mind when they signed the
opposes Hasan's request for the relief noted, arguing
that Hasan's claim of grand juror bias is not cognizable
in habeas corpus since it does not implicate the federal
constitution. (ECF No. 188, PageID 13930-35.) He further
contends that Hasan's argument is contrary to Ohio R.
Crim. P. 6, which provides no mechanism with which to
challenge individual jurors' temperaments, id.,
and therefore Hasan's trial counsel were not ineffective
for failing to pursue the unwinnable grand-jury issue.
Court notes that in these proceedings Hasan never identified
his attorneys' failure to pursue any perceived violation
of state law or challenging grand jurors' impartiality as
a claim underlying his claim of ineffective assistance of
trial counsel. (Petition, ECF No. 16, PageID 2061-62; Motion
to Amend, etc., ECF No. 185, PageID 13853-60.) In both his
petition and his motion, he cites only the federal
constitution as having been violated by his trial
counsel's alleged ineffectiveness. Thus, the Court need
not address Respondent's argument that his counsel were
ineffective for not alleging a violation of Ohio R. Crim. P
6(B)(1). The Court notes, however, that under that rule as it
existed at the time of Hasan's proceedings in the state
courts,  even if the petition signers are
subtracted from the indictments, each indictment still has at
least seven grand jurors voting for indictment; seven
remaining jurors voted for Hasan's indictment on the
non-capital charges, and nine on the capital
charges. (ECF No. 166-1, PageID 13652, 13655.)
Accordingly, his trial counsel would not have been
ineffective in failing to pursue this meritless claim in the
there is no federal constitutional right to an indictment in
state criminal proceedings. Hurtado v. California,
110 U.S. 516, 537-38 (1884). As the Sixth Circuit has
The Fifth Amendment's guarantee of a grand jury
indictment in cases of capital crimes . . . has never been
incorporated into the Fourteenth Amendment and hence is not
applicable to the states. In Hurtado v. California,
110 U.S. 516 (1884), the Supreme Court held that the Due
Process Clause of the Fourteenth Amendment did not require a
grand jury indictment in a prosecution by the State of
California for a capital crime. While it is true that
Hurtado once stood in a line of Supreme Court cases
that refused to incorporate Bill of Rights guarantees
relating to criminal procedure into the Fourteenth Amendment
and while it is true that such older precedent, except for
Hurtado, has been overruled and most of the Bill of
Rights Guarantees relating to criminal procedure have been
incorporated into the Fourteenth Amendment as fundamental
rights, Hurtado remains good law.
Watson v. Jago, 558 F.2d 330, 337 (6th
Cir. 1977). Hurtado's status has not changed
since Watson. See McDonald v. City of
Chicago, 561 U.S. 742, 810 (2010); Albright v.
Oliver, 510 U.S. 266, 272-73 (1994); Stevenson v.
City of Seat Pleasant, 743 F.3d 411, 417 (4th
Cir. 2014); Coles v. Smith, 577 Fed.Appx. 502, 506
(6th Cir. 2014). Thus, Hasan's trial counsel
were not ineffective for failing to pursue the grand jury
issue on the theory that the federal constitution guarantees
him an unbiased grand jury in state proceedings.
suggests that this Court could consider his fourth ground for
relief and the new evidence he submits to support it under
its ancillary jurisdiction pursuant to 28 U.S.C. § 1367,
citing Owen Equipment & Erection Co. v. Kroger,
437 U.S. 365 (1978). (ECF No. 185, PageID 13863.) Federal
habeas courts, however, are not empowered to consider any
claims that do not implicate the federal constitution.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
“The doctrine of ancillary (or ‘pendent' or
‘supplemental' jurisdiction) has never been
extended to habeas corpus.” Kirchoff v.
Robinson, No. 1:13-cv-362, 2014 WL 4983914 at *3 (S.D.
Ohio Oct. 6, 2014)(Supplemental Report and Recommendations,
Merz, M.J.), adopted 2016 WL 5387691 (S.D. Ohio,
Sept. 27, 2016)(Barrett, D.J.).
since the underlying claim is not cognizable in habeas
corpus, neither Martinez v. Ryan, 566 U.S. 1 (2011),
nor Trevino v. Thaler, 569 U.S. 413 (2013) come into
play, nor is there any reason for this Court to grant
Hasan's request to expand the record, to amend his
petition, to grant discovery or an evidentiary hearing, or to
permit Hasan to return to the state court to exhaust his
meritless claim of trial counsel's ineffectiveness.
Granting any of the requested process, including the
application of 28 U.S.C. § 2254(b)(1)(B)(ii) to
Hasan's claim (see ECF No. 185, PageID 13864) to
avoid a return to state court, is unwarranted. Hasan's
requests respecting his Fourth Ground for Relief are
and Ninth Grounds for Relief
eighth and ninth grounds for relief, Hasan claimed his trial
counsel's representation was ineffective because they
failed to present evidence through available witnesses to
raise doubt in the minds of the jurors, and by their
inadequate cross-examination of the State's witnesses.
(ECF No. 185, PageID 13866.)
counters that Hasan has offered nothing new in his motion
respecting his eighth and ninth grounds for relief. (ECF No.
188, PageID 13938.) Rather, Respondent contends the evidence
Hasan submits in support of his motion “is nothing more
than the same quibbling over which inmate or inmates was the
actual ‘hands-on' killer of Corrections Officer
Vallandingham.” Id. In addition, Respondent
reminds the Court of its earlier conclusions that Hasan's
eighth and ninth grounds for relief are procedurally
defaulted. Id. at PageID 13940-41.
requests an evidentiary hearing at which he intends to
demonstrate that the procedural default of his claims should
be excused either because he is actually innocent of the
offenses of which he was convicted, or because his
post-conviction counsel were ineffective for failing to raise
and preserve the claims in the state court.
first invokes Schlup v. Delo, 513 U.S. 298 (1986),
just as he did in his original petition. As this Court
observed in its Report,
In Murray v. Carrier, 477 U.S. 478, 496 (1986), the
Supreme Court allowed that “where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the
procedural default.” More recently, the Sixth Circuit
Court of Appeals has summarized what has come to be known as
“the Schlup actual innocence gateway” as
The United States Supreme Court has held that a claim of
actual innocence can be raised “to avoid a procedural
bar to the consideration of the merits of [the
petitioner's] constitutional claims.” Schlup v.
Delo, 513 U.S. 298, 326-27 (1995). . . . In
Schlup, the Supreme Court held that a credible
showing of actual innocence was sufficient to enable a court
to reach the merits of an otherwise procedurally barred
habeas petition. Schlup, 513 U.S. at 317. The actual
innocence claim in Schlup is “not itself a
constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”
Id. at 315 (citing Herrera v. Collins, 506
U.S. 390, 404 (1993)).
Souter v. Jones, 395 F.3d 577, 588-89
(6th Cir. 2005) (parallel citations omitted). To
be credible, a claim of actual innocence requires that the
allegations of constitutional error be supported with
reliable evidence, such as “‘exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence . . . that was not presented at
trial.'” House v. Bell ___ U.S.
___, ___, 126 S.Ct. 2064, 2077 (2006),
quoting Schlup, 513 U.S. at 324. Consequently, such
claims are rarely successful. Schlup, 513 U.S. at
324, See also House, 126 S.Ct. at 2077 (observing
that “it bears repeating that the Schlup
standard is demanding and permits review only in the
extraordinary case”). In his concurrence in part and
dissent in part in House, Chief Justice Roberts
noted that in a claim of actual innocence under
Schlup, “the new evidence is not simply taken
at face value; its reliability has to be tested.”
House, at 126 S.Ct. at 2088. While the majority and
the dissenters disagreed as to whether the reliability of
House's new evidence had been sufficiently established,
there was no dispute that where a petitioner seeks to avail
himself of the Schlup actual innocence gateway, the
reliability of the new evidence is of paramount importance.
and Recommendations, ECF No. 81, PageID 1092-93.) Although
the reliability of the petitioner's new evidence is
evaluated, “the district court is not bound by the
rules of admissibility that would govern at trial.”
Schlup, 513 U.S. at 327. Rather, the court must
“make its determination concerning the petitioner's
innocence ‘in light of all the evidence, including that
alleged to have been illegally admitted (but with due regard
to any unreliability of it) and evidence tenably claimed to
have been wrongly excluded or to have become available only
after the trial.'” Id. at 328
(quoting Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal
Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)). Moreover,
[W]hen considering an actual-innocence claim in the context
of a request for an evidentiary hearing, the Court need not
“test the new evidence by a standard appropriate for
deciding a motion for summary judgment, ” but rather
may “consider how the timing of the submission and the
likely credibility of the affiants bear on the probable
reliability of that evidence.”
House, 547 U.S. at 537, quoting Schlup, 513
U.S. at 331-32.
starts out misstating the Schlup standard. He
contends his burden under Schlup is to
“demonstrate that it is more likely than not that a
reasonable juror, given all the evidence presented to the
habeas court, would not have found the petitioner guilty
beyond a reasonable doubt” (ECF No. 185, PageID
13868-69, 13871), whereas Schlup actually requires
him to show that more likely than not, no reasonable
juror would have found him guilty beyond a reasonable doubt.
The difference is not merely a matter of semantics.
Hasan's statement of the standard implies that if only
one reasonable juror would find him not guilty of the
offenses charged, he will have met his burden under
Schlup. (ECF No. 185, PageID 13879, contending that
“[r]easonable doubt on any one of [the elements of the
offense] . . . may have been enough to sway a single
reasonable juror.”) The actual standard as stated in
Schlup and reaffirmed in House v. Bell, 547
U.S. 518 (2006), establishes that Hasan must demonstrate that
in light of all the evidence old and new, even if only one
reasonable juror would vote to convict him, he will have
failed to meet his burden. As noted above, the
Schlup standard is intentionally “demanding
and permits review only in the extraordinary case.”
House v. Bell, 547 U.S. 518, 538 (2006)(internal
quotation marks omitted), citing Schlup, 513 U.S. at
is also mistaken when he repeatedly and incorrectly states,
without citation to authority, that his new evidence
“must be taken as true” by this Court in its
consideration of his Schlup actual innocence claim.
(ECF No. 185, PageID 13849, 13871, 13889, 13892, 13894,
13897, 13903, 13907, 13910). In his concurrence in part and
dissent in part in House, Chief Justice Roberts
observed as follows:
In Schlup, we stated that a habeas petitioner
attempting to present a defaulted claim to a federal court
must present “new reliable evidence - whether
it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence - that was not
presented at trial.” 513 U.S., at 324 (emphasis added).
Implicit in the requirement that a habeas petitioner present
reliable evidence is the expectation that a factfinder will
assess reliability. The new evidence at issue in
Schlup had not been subjected to such an assessment
- the claim in Schlup was for an evidentiary hearing
- and this Court specifically recognized that the “new
statements may, of course, be unreliable.”
Id., at 331. The Court stated that the District
Court as the “reviewing tribunal, ” was tasked
with assessing the “probative force” of the
petitioner's new evidence of innocence, and “may
have to make some credibility assessments.”
Id., at 327-328, 330. Indeed, the Supreme Court took
the unusual step of remanding the case to the Court of
Appeals “with instructions to remand to the District