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Cunningham v. Shoop

United States District Court, N.D. Ohio, Eastern Division

December 18, 2019

Jeronique D. Cunningham, Petitioner,
v.
Tim Shoop, Warden, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN CHIEF JUDGE

         Introduction

         This Court denied Petitioner Jeronique Cunningham's petition for writ of habeas corpus on December 7, 2010. (Doc. 157.) On appeal of that judgment, the Sixth Circuit Court of Appeals concluded that one of Cunningham's claims, juror bias, was unexhausted and it remanded the case to this Court “to determine whether it is appropriate to stay-and-abey the petition while Cunningham returns to state court to exhaust this claim.” Cunningham v. Hudson, 756 F.3d 477, 479 (6th Cir. 2014) (per curiam). This Court then stayed this case and held it in abeyance while Cunningham exhausted the juror-bias claim in state courts. (Doc. 173.) Cunningham has now exhausted the claim and filed an amended habeas petition. (Doc. 200.) Respondent Warden Tim Shoop has filed a supplemental return of writ (Doc. 201), and Cunningham has filed a traverse. (Doc. 205.) For the following reasons, the Court DENIES Cunningham's amended petition.

         Factual Background

         Cunningham was convicted and sentenced to death in an Ohio court (Allen County Court of Common Pleas) for the aggravated murder of three-year-old Jala Grant and seventeen-year-old Leneshia Williams. See State v. Cunningham, 105 Ohio St.3d 197, 197-200 (Ohio 2004).[1]

         In the early afternoon of January 3, 2002, Cunningham and his half-brother, Cleveland Jackson, bought crack cocaine from Lashane Liles at Liles' apartment in Lima, Ohio. Id. at 197. Cunningham and Jackson returned to Liles' apartment that evening, intending to rob him. Id. When the brothers arrived, Liles was not home, but several family members and friends were there. Id.

         Liles showed up soon after, and Jackson spoke to him about purchasing drugs while Cunningham watched a movie with two teenagers in the living room. Id. Cunningham then ordered the two teenagers into the kitchen, where three adults and two children - three-year-old Jala and seventeen-year-old Leneshia - were already gathered. Id. The teenagers did not immediately comply, so Cunningham pulled out a gun and struck one in the face with the gun barrel, breaking his jaw. Id. At that point, Jackson brandished his gun and aimed it at Liles. Id.

         The two teenagers ran into the kitchen, followed by Cunningham, who then held the group at gunpoint. Id. at 197-98. Jackson forced Liles upstairs, where he robbed him of drugs and money. Id. at 198. Jackson then led Liles downstairs to the kitchen. Id. The group was ordered to place their money, jewelry, and watches on the table. Id. Jackson demanded more money from Liles, and when Liles told him he had none, Jackson shot him in the back. Id. Cunningham and Jackson then turned their weapons on the others, shooting each of them. Id. Jala and Leneshia both died from gunshot wounds to the head. Id. The rest survived, though all but one were seriously injured. Id.

         The police recovered only five bullets and eight spent shell casings at the scene and one bullet from a victim's arm. Id. at 199. The guns were never found. Id. There was no physical evidence that any of the bullets came from Cunningham's gun. Id. at 199-200.

         Relevant Procedural History

         A. State-Court Proceedings

         Cunningham was indicted on two counts of aggravated murder for purposely causing the death of Jayla Grant and Lenishia Williams during an aggravated robbery; one count of aggravated robbery; and six counts of attempted murder. (Doc. 192-1 at 34-44.)[2] Each of the aggravated murder counts contained two death-penalty specifications: one that the murder was part of a course of conduct to kill or attempt to kill two or more persons, and another that the murder occurred during an aggravated robbery and was committed with prior calculation and design. (Id. at 34-35.) Firearm and repeat-violent-offender specifications were attached to all counts except the weapon-under-disability charge. (Id. at 34-44.)[3] Cunningham entered pleas of not guilty to all charges. (See Doc. 192-2 at 204.)

         On June 18, 2002, after a seven-day trial, a jury found Cunningham guilty of all charges, the two death-penalty specifications, and the firearm specifications. (See id. at 204-10.) After a penalty hearing, the trial court sentenced Cunningham to death on the aggravated murder charges consistent with the jury's recommendation. (Id. at 211-25.)[4]Cunningham's convictions and sentences were affirmed on direct appeal. See Cunningham, 105 Ohio St.3d at 224.

         Cunningham filed a timely petition for post-conviction relief in the trial court in August 2003. (Doc. 192-4 at 45-453 (Post-Conviction Petition).) Among other claims, he asserted that one of the jurors was biased, violating his constitutional right to a fair and impartial jury. (Id. at 83-86.) He argued that Nichole Mikesell, the foreperson of the jury, had obtained negative information about him from colleagues at the social-services agency where she worked at the time of the trial. (Id. at 85.) To support this claim, he attached a summary of an interview with Mikesell that an investigator for Cleveland Jackson had conducted after the trial. (Id. at 310-11 (Ex. R to Post-Conviction Petition).) The investigator reported that Mikesell called Cunningham “an evil person” with “no redeeming qualities.” (Id. at 311.) He also wrote that she told him that “some social workers worked with Jeronique in the past and were afraid of him, ” and that “if you observe one of the veins starting to bulge in his head, watch out and stay away because he might try to kill you.” (Id.)

         The trial court denied Cunningham's post-conviction petition without allowing discovery or an evidentiary hearing. (Doc. 192-5 at 8-30.) The state appellate court affirmed. State v. Cunningham, No. 1-04-19, 2004 WL 2496525 (Ohio Ct. App. Nov. 8, 2004). The Ohio Supreme Court denied discretionary review. State v. Cunningham, 105 Ohio St.3d 1464 (2005).

         B. Initial Federal Habeas Proceedings

         In October 2006, Cunningham filed a petition for a writ of habeas corpus in this Court, asserting fourteen claims for relief. (Doc. 19.) The case originally was assigned to Judge Peter Economus who referred the matter to Magistrate Judge McHargh for “limited delegation.” His first claim included his allegations of juror bias based on Mikesell's knowledge of extra-judicial information about Cunningham. (Doc. 19-2 at 1-6.)

         In April 2008, Cunningham requested discovery, including documents and depositions related to his juror-bias claim. (Doc. 79 at 2-3.) In June 2008, Judge Economus granted Cunningham leave to depose Mikesell, the other seated and alternate jurors, Mikesell's co-workers at the Allen County Children's Services, and Jackson's investigator. (Doc. 86 at 12.) In August 2008, Cunningham requested, and was granted, funds to employ an investigator. (Docs. 91, 92.)

         In the fall of 2008, Cunningham acquired affidavits from two jurors, Staci Freeman and Roberta Wobler. (Doc. 104-1 (Freeman Aff.); Doc. 103-1 (Wobler Aff.).) Neither Freeman nor Wobler recalled hearing Mikesell discuss the negative information about Cunningham at issue in Cunningham's petition. (See Doc. 104-1 at 2.) But, both women averred that Mikesell mentioned knowing the families of the victims of the crime. (Id.; Doc. 103-1 at 1.) Freeman stated:

At one point during the jury deliberations, I had problems with the apparent fact that all the ballistic evidence pointed to a 9mm automatic pistol and not the revolver [allegedly belonging to Cunningham]. I expressed my opinion and Nichole Mikesell responded that, You don't understand. I know the families of the people that were shot in the kitchen. The families know me and I am going to have to go back and see them. These families are my clients. I interpreted Mikesell's comments as pressure to vote guilty.

(Doc. 104-1 at 1-2.) Wobler averred that Mikesell

stated that she knew of the families of the victims from Family Services[.] One young woman on the jury was adamant that Jeronique was not guilty. Mikesell told the young woman and the jury that the young woman did not have to work in the local community.

(Doc. 103-1 at 1-2.)

         Cunningham's counsel deposed Mikesell in January 2009. (Doc. 188-1 (Mikesell Dep.).) She testified that she did not speak to social workers about Cunningham at the time of the trial, but that she did look at his file after the trial concluded. (Id. at 118.) During the deposition, counsel asked Mikesell if she knew any of the victims. (Id. at 119.) Respondent's counsel objected on the ground that the question was beyond the scope of the claim, and the federal magistrate judge presiding over the deposition sustained the objection. (Id. at 120.)

         In March 2009, Cunningham moved for, and Judge Economus granted, leave to amend his juror-bias claim to add the allegations that Mikesell was biased because she knew the victims' families, considered them her clients, and would ultimately have to face them in the community. (Docs. 111, 120.) Cunningham also requested an evidentiary hearing, which Judge Economus denied, although he permitted Cunningham to depose jurors Freeman and Wobler on this issue. (Doc. 120 at 5-6.)

         Freeman and Wobler were deposed in October 2009. Freeman testified that during guilt-phase deliberations, Mikesell “stat[ed] that she dealt with the victims and their families, they knew who she was, and that if she would find him not guilty that she would have to deal with them and that's just something she didn't want to have to deal with because they knew who she was.” (Doc. 137-1 (Freeman Dep.) at 60.) When asked how this remark impacted her deliberations, Freeman testified that she “felt pressured, ” and “as the last one holding out, [she] felt that [she] was up against a wall, and [Mikesell] was very domineering and so I just . . . You know I regret, I shouldn't have, but I voted guilty.” (Id. at 11.) Mikesell's comment, she said, “should never have been made . . . .” (Id.) Wobler testified at her deposition that, “at the very end of the deliberations [Mikesell] stated she may in the future be working with the families under the Welfare Job and Family Services where she worked, ” but “not that she had been.” (Doc. 136-1 (Wobler Dep.) at 5-6.) She denied, however, that the comment had any impact on her deliberations (Id. at 6) or that anyone forced her to recommend the death penalty (Id. at 13).

         Cunningham requested and was granted leave to amend his petition in November 2009 and again in March 2010 to include the allegations about Mikesell that he uncovered in the depositions. (Docs. 129, 141.) In March 2010, Respondent moved to strike the Freeman and Wobler depositions on the ground that Cunningham did not diligently seek information about the victims' families in state court. (Doc. 142.) Judge Economus denied the motion (Doc. 155), finding that Cunningham had exercised due diligence in state courts in attempting to develop the claim's factual basis through requests for discovery and an evidentiary hearing, though the state trial court denied those requests. (Id. at 3.)

         The case was then assigned to this Court which, in December 2010, denied Cunningham's petition. (Doc. 157.) Regarding the juror-bias claim based on Mikesell's relationship with the victims' families, the Court concluded that the claim was unexhausted and procedurally defaulted because Cunningham had not presented it to the state courts, but that even “[i]f the Court were to consider the testimony, it would find this claim to be without merit.” (Id. at 31-32.) It found that the deposition testimony of jurors Wobler and Freeman demonstrated that “they were not forced to convict Cunningham. Even though Freeman stated that she felt pressured, it was because she was the only one holding out, and she was not happy that Mikesell, as jury foreperson, was controlling the situation. Usually, a foreperson controls the jury.” (Id. at 32.)

         Cunningham appealed that judgment, and the Sixth Circuit granted a certificate of appealability on seven claims, including whether the presence of the jury foreperson deprived Cunningham of a fair trial. See Cunningham v. Hudson, 756 F.3d 477, 481 (6th Cir. 2014). In June 2014, the circuit court issued a per curiam opinion addressing Cunningham's claim of juror bias based on Mikesell's relationship with the families of the murder victims. The court concluded that this claim was unexhausted but not procedurally defaulted, because Cunningham still could raise it in a motion for a new trial or a second petition for post-conviction relief in the Ohio state courts. Id. at 485. The court further found that Cunningham had good cause for his failure to exhaust the claim because he did not become aware of the factual basis for this claim until he conducted discovery in this Court, and Respondent had not demonstrated that this Court's finding that Cunningham exercised due diligence in attempting to develop the factual basis of this claim was clearly erroneous. Id. at 486. Finally, it determined that the juror-bias claim was “not plainly meritless, ” as “evidence of [Mikesell's] alleged relationship with the families of the victims raises grave concerns about her impartiality . . . .” Id. at 486-87. The court framed the issue raised by this claim as: “did Mikesell have a relationship with the families of the victims, and if so, was she improperly biased or influenced by that relationship and her knowledge that she would have to face them and work in the community after the trial was over?” Id. at 486. The court, therefore, vacated this Court's judgment denying Cunningham's petition and remanded the petition to this Court “to determine whether it is appropriate to stay-and-abey the petition while Cunningham returns to state court to exhaust this claim.” Id. at 479.

         The parties then briefed the matter (Docs. 169, 171, 172), and this Court granted Cunningham's request to stay this matter and hold it in abeyance until he exhausted his claim in state courts (Doc. 173). In evaluating Cunningham's request to stay these proceedings under federal law and procedural rules, the Court observed that “Cunningham [had] not engaged in abusive litigation tactics or intentional delay[, ]” but had “diligently sought to develop the factual basis of this claim in both state and federal court.” (Doc. 173 at 6.)

         C. State-Court Proceedings Following Remand

         In December 2014, Cunningham filed in the state trial court a second-in-time petition for post-conviction relief, a motion for leave to file a delayed motion for a new trial, and a motion for funds to employ an investigator. (Doc. 188-1 at 31-138 (Post-Conviction Petition); Doc. 209-1 at 4-10 (Motion for Funds), 11-115 (New-Trial Motion).) In both the post-conviction petition and delayed motion for new trial, he asserted a single claim of juror bias based on both Mikesell's alleged extra-judicial information about him and her alleged relationship with the victims' families. (Doc. 188-1 at 38-40; Doc. 209-1 at 14-17.) He also requested discovery. (Doc. 188-1 at 31; Doc. 209-1 at 17.) As support, he submitted the 2003 affidavit of Jackson's investigator, who interviewed the jurors after the trial, with the attached report; the 2008 Freeman and Wobler affidavits; the 2009 depositions of Freeman and Wobler; and the 2009 deposition of Mikesell. (See Doc. 188-1 at 42; Doc. 209-1 at 19 (lists of exhibits).) The State responded to Cunningham's post-conviction petition and motions, and moved to dismiss the petition and new-trial motion. (Doc. 188-1 at 150-82.)

         In September 2015, the trial court denied the post-conviction petition and motion for leave to file a delayed motion for a new trial without permitting discovery or an evidentiary hearing; denied the motion for funds to employ an investigator; and granted the State's motion to dismiss. (Id. at 223-38.) Cunningham appealed the trial court's judgment to the state appellate court. (Doc. 188-2 at 7.) The court of appeals affirmed the ruling in May 2016. (Id. at 159-83.) Cunningham appealed that judgment to the Ohio Supreme Court (Id. at 187-88), which declined jurisdiction in July 2017 (Doc. 188-3 at 96).

         D. Reinstated Federal Habeas Proceedings

         Cunningham returned to this Court in November 2017. (See Doc. 187.) He filed an “Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus” in July 2018. (Doc. 200.) Therein, he reasserts the first claim for relief in his original habeas petition, captioned: “The state court determinations that errors in jury selection did not deprive Mr. Cunningham of a fair trial and sentencing proceeding rest on unreasonable determination of facts, are contrary to, or an unreasonable application of law.” (Doc. 200-1 at 6 (capitalization altered).) He expands upon his analysis of his allegations related to juror Mikesell's relationship with the victims' families. (Id. at 12-22.) Claims for relief 2 through 14 of Cunningham's amended petition are nearly identical to his original petition.[5]

         Respondent filed a “Supplemental Return of Writ to Amended Petition” in October 2018 (Doc. 201), and Cunningham filed a “Traverse” in June 2019. (Doc. 205.) Cunningham also filed a motion for discovery (Doc. 206), which Respondent opposed (Doc. 207).

         Analysis

         A. Scope of Remand

         As a preliminary matter, the parties dispute the scope of the Sixth Circuit's remand. Cunningham argues that the circuit court made its mandate “clear” when it stated at the beginning of its opinion: “[W]e vacate the district court's judgment and remand the petition to the district court to determine whether it is appropriate to stay-and-abey the petition while Cunningham returns to state court to exhaust this claim.” (Doc. 205 at 3 (quoting Cunningham, 756 F.3d at 479).) He asserts that through this language, the court vacated this Court's entire judgment denying his petition, and the Court must now reconsider all of his claims, taking into account the “significant legal developments” in habeas law since the allegedly vacated judgment was issued nearly nine years ago. (Id. at 3-4.)

         Respondent, for his part, notes the circuit court explained that it was “address[ing] only” Cunningham's claim of juror bias based on Mikesell's alleged relationship with the murder victims' families and her resulting impartiality. The Sixth Circuit specifically determined that the juror-bias claim was not plainly meritless because of evidence of “Mikesell's alleged relationship with the families of the victims...” Cunningham, 756 F.3d at 486. In finding the claim was unexhausted but neither procedurally defaulted nor plainly meritless, it remanded the petition to this Court for a stay-and-abeyance determination. (Doc. 201 at 25-30.) He maintains that the “law of the case” doctrine dictates that this Court should review only the juror-bias claim at issue in the Sixth Circuit's opinion and decline to reconsider its prior ruling on Cunningham's other claims. (Id.)

         The doctrine of law of the case provides that findings made at one point in litigation become the binding law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993)). A related theory is the mandate rule, which “requires lower courts to adhere to the commands of a superior court.” Id. (citing Bell, 988 F.2d at 251).

Therefore, “[u]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must ‘proceed in accordance with the mandate and the law of the case as established on appeal.' The trial court must ‘implement both the letter and the spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.'”

Id. (quoting United States v. Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (citations omitted)).

         Appellate courts have broad discretion to issue either a general or limited remand. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (citing 28 U.S.C. § 2106). General remands “give district courts authority to address all matters as long as remaining consistent with the remand.” Id. Limited remands, on the other hand, “explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate.” Id. “Traditionally, the mandate rule instructs that the district court is without authority to expand its inquiry beyond the matters forming the basis of the appellate court's remand.” Id.

         The scope of a remand is ascertained by “examining the entire order or opinion, to determine whether and how the court of appeals intended to limit a remand.” Scott v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004). When confronted with a remanded case, a district court must “determin[e] what part of this court's mandate is intended to define the scope of any subsequent proceedings. The relevant language could appear anywhere in an opinion or order, including a designated paragraph or section, or certain key identifiable language.” Campbell, 168 F.3d at 266-67 (footnote omitted). Individual paragraphs and sentences, however, must not be read out of context. Id. at 267.

         Here, the Sixth Circuit's opinion indicates that its remand was limited in scope. The court explicitly stated the limited purpose of the opinion: to order consideration of a stay and abeyance so that Cunningham could exhaust in state court a claim that the circuit court found was neither procedurally defaulted nor plainly meritless. And it clearly identified the action this Court was to take: “[W]e remand Cunningham's mixed habeas petition to the district court to determine whether state-and-abeyance is appropriate.” Cunningham, 756 F.3d at 487. Consistent with that limited objective, the circuit court vacated this Court's judgment to allow for further consideration of the juror-bias claim.

         Pursuant to that limited remand, this Court determined that stay-and-abeyance was appropriate while Cunningham exhausted the juror-bias claim. (Doc. 173.) As those state-court proceedings are complete, this Court will review the now-exhausted claim of juror bias based on Mikesell's alleged relationship with the families of the murder victims. The Court will not revisit Cunningham's other claims, as it “is without authority to expand its inquiry beyond the matters forming the basis of the appellate court's remand.” Campbell, 168 F.3d at 265. The Court, therefore, repeats and incorporates herein its judgment of December 7, 2010 (Doc. 157), as to Cunningham's remaining claims in his claim for relief 1 and his claims for relief 2 through 14.[6]

         B. Cunningham's Claim of Juror Bias

         In his amended petition, Cunningham asserts that during the jury's deliberations, the jury foreperson, Nichole Mikesell, told her fellow jurors that she knew the families of the victims, they were her clients at the Allen County Children's Services, and she pressured the jurors to convict Cunningham and sentence him to death “to spare her the negative reactions from the victims' family members.” (Doc. 200-1 at 12-14.) Cunningham notes that Mikesell did not divulge this alleged relationship during voir dire. (Id. at 8.) He bases his claim on information gleaned from the affidavits and depositions of two jurors, Staci Freeman and Roberta Wobler, taken in 2008 and 2009. (See Doc. 103-1 (Wobler Aff.); Doc. 104-1 (Freeman Aff.); Doc. 136-1 (Wobler Dep.); Doc. 137-1 (Freeman Dep.).)

         1. Procedural Posture

         Respondent argues that this claim is procedurally defaulted and barred from federal habeas review. The default occurred, he asserts, when Cunningham returned to state court to raise it for the first time and the state courts rejected his second-in-time petition for post-conviction relief as untimely and successive under Ohio's statutory post-conviction relief scheme, and his motion for leave to file a delayed motion for a new trial as failing to meet the requirements of Ohio's procedural rules. (Doc. 201 at 10-17.)

         Procedural default occurs when a habeas petitioner fails to obtain consideration of a federal constitutional claim by state courts because he or she failed to comply with a state procedural rule that prevented the state courts from reaching the merits of the petitioner's claim. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). In determining whether a claim is procedurally defaulted and barred from consideration on federal habeas review, the federal court looks to the last state court rendering a reasoned opinion on that claim. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).[7]

         Where a state court declines to address a prisoner's federal claim because the prisoner has failed to meet a state procedural requirement, federal habeas review is barred as long as the state judgment rested on “independent and adequate” state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be independent, a state procedural rule and the state courts' application of it must not rely in any part on federal law. Id. at 732-33. To be adequate, a state procedural rule must be “‘firmly established' and ‘regularly followed'” by the state courts at the time it was applied. Beard v. Kindler, 558 U.S. 53, 60-61 (2009).

         In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit established this now familiar test to be followed when the state argues that a habeas claim is defaulted because of a prisoner's failure to observe a state procedural rule:

First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction - that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must decide whether the state procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice.

Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin, 785 F.2d at 138) (further citations omitted).

         State-court decision. Here, the state appellate court which was the last state court to consider Cunningham's juror-bias claim based on Mikesell's alleged relationship with the victims' families, upheld the trial court's dismissal of Cunningham's post-conviction petition. (Doc. 188-2 at 165-75.) It explained that when Cunningham filed his second-in-time petition in December 2014, Ohio's statutory post-conviction relief scheme required that petitions in capital cases be filed within 180 days after the trial transcript is filed in the Ohio Supreme Court. (Id. at 165-66 (citing Ohio Rev. Code § 2953.21(A)(2)).)[8] Otherwise, trial courts “lack[ed] jurisdiction to entertain” untimely or successive petitions, unless the petitioner established that one of two exceptions applied: either (1) he was “unavoidably prevented from discovering the facts necessary for the claim for relief”; or (2) the claim was based on a new and retroactive federal or state right recognized by the United States Supreme Court. (Id. at 166-67 (citing Ohio Rev. Code § 2953.23(A)(1)(a)).) A defendant “is ‘unavoidably prevented' from the discovery of facts if he had no knowledge of the existence of those facts and could not have, in the exercise of reasonably diligence, learned of their existence” before the filing deadline for post-conviction petitions. (Id. at 170) (citations omitted). If the petitioner ...


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