                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 18a0023n.06

                                           No. 16-2760


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

KARL VINSON,                                             )                   FILED
                                                         )             Jan 11, 2018
       Petitioner-Appellant,                             )         DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
SHANE JACKSON, Warden,                                   )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF MICHIGAN
       Respondent-Appellee.                              )
                                                         )
                                                         )

                                                             AMENDED OPINION


BEFORE:        SUHRHEINRICH, SUTTON, and BUSH, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. In 1986, Karl Vinson was convicted in Michigan state

court of first-degree criminal sexual conduct and breaking and entering a building with the intent

to commit a felony. He exhausted his state court remedies and unsuccessfully sought a writ of

habeas corpus. After a new round of serological testing and a post-conviction evidentiary

hearing, he contends that new evidence entitles him to file a second petition for a writ of habeas

corpus. Because Vinson has failed to establish the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) threshold requirements to pursue a second habeas petition, we affirm the district

court’s denial of his request.

                                      I.   BACKGROUND

       Karl Vinson was accused of raping a nine-year-old girl in 1986. The state alleged that he

snuck into the girl’s room through a window while she was sleeping and proceeded to rape her.
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After unsuccessfully attempting to wake the victim’s sister up (who shared a bedroom with the

victim), he told the girl to close her eyes and count to fifty. While she counted, he exited through

the window.

        At trial, the prosecution relied on two pieces of evidence to secure Vinson’s conviction.

First, the victim identified Vinson as her rapist. She explained that there was enough light in the

room for her to see his facial features. She also explained that she recognized his voice because

she had met him previously, since Vinson’s ex-wife babysat the victim. Second, the state relied

on forensic evidence from the crime scene. Specifically, there was a stain containing a mixture

of blood and seminal fluid left on the victim’s bedsheet. While DNA testing was not yet

available, the state conducted serological tests on the bedsheet. Serological testing analyzes

bodily fluids and can determine, among other things, the presence of seminal fluid and, in some

instances, blood types.

        In this case, the state’s serological tests on the bedsheet revealed two things: (1) the

presence of seminal fluid and at least one sperm cell; and (2) blood type-O antigens.1 The state

conducted tests on both the victim and Vinson, as well. The victim was a type-O secretor and

Vinson was determined to be a type-AB non-secretor. The difference between a secretor and a

non-secretor is important for purposes of Vinson’s claim. A secretor’s “bodily fluids (saliva,

semen, vaginal secretions) contain a water-soluble form of the antigens of the ABO blood

group.” People v. Vinson, No. 303593, 2012 WL 3046236, at *2 (Mich. Ct. App. July 26, 2012)

(quoting mediLexicon, http://medilexicon.com/medicaldictionary.php?t=80515).                          A non-

secretor’s bodily fluids, on the other hand, will contain no such antigens. Thus, a secretor’s




1
  The presence of type-O antigens indicates that the donor of the bodily fluids had type-O blood. Similarly, were
there type-AB antigens in the stain, it would indicate that the donor had type-AB blood.

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blood type can be determined by testing that person’s bodily fluids, whereas a non-secretor’s

blood type cannot.

         At trial, Paula Lytle, an expert witness for the prosecution, testified that she had tested

Vinson and determined him to be a non-secretor, meaning that his blood type would not have

shown up in the stain on the bedsheet. This was an important piece of testimony, as the bedsheet

stain analysis revealed only type-O antigens. Were Vinson a secretor, there likely would have

been type-AB antigens on the bedsheet, as well. However, the absence of type-AB antigens

from the bedsheet could be explained away by Vinson’s non-secretor status.

         The jury convicted Vinson, and he began his appeal process. During this process, Vinson

sought DNA testing (which, at that point, was available) of the bedsheet; however, he learned

that the physical evidence had since been destroyed. After exhausting his state court remedies

and unsuccessfully seeking a writ of habeas corpus in federal district court,2 Vinson approached

a concerned citizen who offered to pay for a new round of serological testing. That testing

demonstrated that Vinson was actually a type-AB secretor.                             The Michigan State Police

conducted a follow-up test and confirmed that Vinson was, in fact, a secretor. That fact is not in

dispute here. Vinson was subsequently granted a post-conviction evidentiary hearing.

         Lytle was called to testify once again at the evidentiary hearing. She testified that, had

she been asked where the type-O antigens in the stain had originated, she would have responded

that they could not have come from Vinson, but that they could have come from the “donor of

the semen and/or the victim.” She further testified that, if she had known that Vinson was a

secretor at his trial, she would have determined that the physical evidence excluded him.

Defense counsel called a second expert witness, Arthur Young, who corroborated Lytle’s
2
  Aside from the fact that the claims in his second petition are different from those in his earlier petition, the contents
of Vinson’s first habeas petition are not important for purposes of this proceeding. See 28 U.S.C. § 2244(b)(1)
(requiring dismissal of successive habeas petitions making the same claims).

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Vinson v. Jackson

testimony. In response, the prosecution presented expert witness Connie Swander, who testified

that a stain might contain type-AB antigens but fail to register a result if there is an insufficient

number of antigens present on the sampled portion. In other words, according to her testimony,

Lytle’s tests on the bedsheet stain did not prove the absence of type-AB antigens.

        After this evidentiary hearing, the trial judge denied Vinson’s request for relief and his

claim of ineffective assistance of counsel. Vinson unsuccessfully challenged that determination

in the Michigan Court of Appeals. People v. Vinson, No. 303593, 2012 WL 3046236, at *7

(Mich. Ct. App. July 26, 2012). The Michigan Supreme Court denied leave to appeal that

decision. People v. Vinson, 843 N.W.2d 493 (Mich. 2014). Vinson then wished to file a second

petition for a writ of habeas corpus. As required by 28 U.S.C. § 2244(b)(3)(A), he sought

permission from this court to file that petition. In re Vinson, No. 14-2521 (6th Cir. Sept 24,

2015). We authorized that filing and restricted Vinson to three claims: (1) ineffective assistance

of trial counsel for failing to adequately cross-examine Lytle; (2) ineffective assistance of

appellate counsel for failing to raise the first claim on appeal; and (3) actual innocence. Id. The

district court rejected all three of the claims. Vinson v. Mackie, No. 14-CV-14542, 2016 WL

7100249, at *10 (E.D. Mich. Dec. 6, 2016). Vinson sought a certificate of appealability as to the

district court’s judgment. See 28 U.S.C. § 2254(c)(2). We granted that certificate as to Vinson’s

first two claims—those alleging ineffective assistance of counsel—and denied it as to his third

claim of actual innocence. Vinson v. Jackson, No. 16-2760 (6th Cir. June 15, 2017) (order

granting certificate of appealability in part).




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Vinson v. Jackson

                                        II.   ANALYSIS

       This is Vinson’s second petition for a writ of habeas corpus. As such, he must show that

he satisfies the threshold AEDPA requirements to pursue his petition. In relevant part, AEDPA

provides:

               A claim presented in a second or successive habeas corpus
               application under section 2254 that was not presented in a prior
               application shall be dismissed unless--

               (A) the applicant shows that the claim relies on a new rule of
               constitutional law, made retroactive to cases on collateral review
               by the Supreme Court, that was previously unavailable; or

               (B)(i) the factual predicate for the claim could not have been
               discovered previously through the exercise of due diligence; and

               (ii) the facts underlying the claim, if proven and viewed in light of
               the evidence as a whole, 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.

28 U.S.C. § 2244(b)(2). In granting leave to file this second petition, we held that Vinson had

made a prima facie showing that he satisfied these requirements. See In re Vinson, No. 14-2521

(6th Cir. Sept. 24, 2015); see also 28 U.S.C. § 2244(b)(3)(C). The prima facie determination,

however, is not a full-throated review—it only requires us to determine that the allegations

“warrant a fuller exploration in the district court.” In re McDonald, 514 F.3d 539, 544 (6th Cir.

2008) (quoting In re Lott, 366 F.3d 431, 433 (6th Cir. 2004)). A district court must apply a

stricter standard. See, e.g., Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001) (“[T]o survive dismissal

in district court, the applicant must actually ‘sho[w]’ that the claim satisfies the standard.”).

Accordingly, the district court was correct to recognize that it needed to make the threshold




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AEDPA findings. Vinson, 2016 WL 7100249, at *4. But the district court never clearly made

any findings as to those requirements.3

        Only the requirements of section 2244(b)(2)(B) are implicated here.                       We need not

proceed past the first of those requirements, new evidence not previously discoverable through

due diligence, because Vinson has failed to present any.

        In his second habeas petition and brief in support thereof, Vinson relied primarily on his

newly discovered secretor status. But Vinson’s status as a secretor or a non-secretor was a

discoverable fact at the time of his original habeas petition—the key reference point for our

analysis. Indeed, this evidence was available at his original criminal trial, well before his first

request for habeas relief. That his secretor status was tested is proof of that. Thus, this

information does not meet the requirements of § 2244(b)(2)(B)(i) and cannot support a second

habeas petition. 22 U.S.C. § 2244(b)(2)(B)(i).

        Perhaps recognizing this deficiency, Vinson presents a slightly different argument on

appeal. He argues that the factual predicate supporting his claim is his secretor status “coupled

with Ms. Lytle’s testimony at the evidentiary hearing.”                  He argues that Lytle’s testimony

indicates that she would have exonerated Vinson at trial even if he actually was a non-secretor.

Specifically, Vinson argues that Lytle, had she been asked the right questions, would have

testified that “there is only a remote possibility that the Type-O antigens on the [bedsheet] came

from the victim, and, therefore, the Type-O antigens almost certainly came from the true

perpetrator’s semen.” But this factual predicate fails for the same reason. Nothing in Lytle’s


3
  The district court’s opinion is unclear as to how it rejected these three claims. The opinion began by indicating
that it would dismiss the claims due to Vinson’s failure to satisfy the threshold AEDPA requirements. Vinson, 2016
WL 7100249, at *4. However, it then proceeded to consider the merits of Vinson’s ineffective assistance of counsel
claims—an inquiry presumably reserved for consideration of his habeas petition—and ultimately ordered that his
petition be denied, rather than dismissed. Id. at *10. This confusion, however, does not affect our judgment here.
Accordingly, we need not resolve how the district court did away with these claims.

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Vinson v. Jackson

statements can be considered evidence that could not have been previously discovered. The

technology existed to determine blood type and secretor status. And Lytle’s conclusions drawn

from those tests were clearly discoverable, as she offered them at trial.

       Regardless of how Vinson articulates the factual predicate undergirding his second

habeas petition, it is clear that the facts giving rise to this claim were discoverable at trial, and

thus, could have been known when he filed his first habeas petition. Because we must dismiss

all successive habeas petitions unless the factual predicate supporting the petition “could not

have been discovered previously through the exercise of due diligence,” Vinson’s petition cannot

proceed. See 28 U.S.C. § 2244(b)(2)(B)(i).

       Even had Vinson presented evidence sufficient to satisfy § 2244(b)(2)(B)(i), his second

petition must still be dismissed. The second threshold AEDPA requirement mandates that

Vinson’s new evidence must show, by clear and convincing evidence, that no reasonable juror

would have found him guilty. Id. § 2244(b)(2)(B)(ii). At trial, the victim presented eyewitness

testimony identifying Vinson as her assailant. Given that fact, it is difficult to see how Vinson’s

secretor status, alone, would meet this requirement.

                                      III.   CONCLUSION

       For these reasons, we AFFIRM the judgment of the district court.




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