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Hasan v. Ishee

United States District Court, S.D. Ohio, Western Division, Cincinnati

February 15, 2018

SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner,
TODD ISHEE, Warden Respondent.

          Susan J. Dlott, District Judge


          Michael R. Merz United States Magistrate Judge

         This 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.[1] (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).

         The Motions at issue are all non-dispositive pre-trial motions committed in the first instance to the decisional authority of an assigned Magistrate Judge.


         State Court Proceedings

         Hasan's 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:

         Direct Appeal

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).

         Application 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.

         Habeas Corpus Proceedings

         On 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[2] (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).

         Hasan 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).

         Shortly 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.

         Hasan 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.


         Expansion of the Record

         “When 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, 431-37 (2000).

         The 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 circumstances.

         Motion to Amend

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, [3] 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. 2014.)

         Motion for Discovery

         A 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.

         Motion for an Evidentiary Hearing

         Under 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.

         Hasan 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.

         The 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).

         Motion for Stay

         District 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.


         Fourth Ground for Relief

         In his 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, [4] invoking Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013)[5] in an attempt to avoid any procedural default of his claim.

         Hasan 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 follows:

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 enough.

(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 petition.

         Respondent 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.

         The 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, [6] 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.[7] (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 state courts.

         Moreover, 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 observed:

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.

         Hasan 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.).

         Furthermore, 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 accordingly DENIED.

         Eighth and Ninth Grounds for Relief

         In his 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.)

         Respondent 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.

         Hasan 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.

         Hasan 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 follows:
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.

         (Report 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.

         Hasan 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 327.

         Hasan 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 ...

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