                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0013p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                        X
                                                         -
 In re: DEWITT MCDONALD, JR.,

                                             Movant. -
                                                         -
                                                         -
                                                             No. 06-4120

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                                                          >
                                                        N
                              On Motion to Authorize the Filing of a
                                Second or Successive Application
                                   for Habeas Corpus Relief.
                          No. 98-07308—John W. Potter, District Judge.
                                   Argued: November 29, 2007
                              Decided and Filed: January 10, 2008
                 Before: SILER, GIBBONS, and McKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Robert T. Smith, JONES DAY, New York, New York, for Petitioner. Jerri L.
Fosnaught, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Respondent.
                                       _________________
                                           OPINION
                                       _________________
        JULIA SMITH GIBBONS, Circuit Judge. Petitioner Dewitt McDonald Jr. moves this court
to grant him permission to file a second or successive habeas corpus petition pursuant to 28 U.S.C.
§ 2244(b)(3). For the following reasons, we authorize McDonald to file a second habeas corpus
petition with the district court.
                                                  I.
        On June 27, 1995, the Common Pleas Court of Erie County, Ohio, entered a jury’s guilty
verdict for McDonald, convicting him of complicity to commit the following offenses: (1)
aggravated murder with a firearm specification; (2) murder with a firearm specification; (3)
improperly discharging a firearm into a habitation with specifications for harm and a firearm; (4)
felonious assault with a firearm specification; (5) attempted aggravated murder with a firearm
specification; and (6) felonious assault with a firearm specification. The evidence presented at trial
included the testimony of Krista Harris who had initially provided McDonald with an alibi when
testifying before a grand jury. At trial, however, Harris recanted her initial grand jury testimony,
testifying instead on behalf of the prosecution. Indeed, as summarized by the Court of Appeals of
Ohio,

                                                  1
No. 06-4120                In re McDonald                                                                        Page 2


        Harris stated that [McDonald] was supposed to meet her in a motel room a few
        blocks from the shooting scene, but he did not show up until sometime after 3:15
        a.m. When he did arrive, according to Harris, he appeared nervous and shaken.
        Harris also testified that the next morning she overheard a telephone conversation
        between [McDonald] and Turner in which the shooting was discussed and
        [McDonald] stated that they “had to get the gun.” [McDonald] left and returned with
        Turner a short time later; Turner was carrying a duffle bag. The trial judge merged
        the first two counts and sentenced McDonald to life in prison.
State v. McDonald, No. E-95-046, 1997 Ohio App. LEXIS 355, at *4 (Ohio Ct. App. February 7,
1997).
        On May 28, 1998, after pursuing his claims on direct appeal, McDonald filed a habeas
corpus petition with the United States District Court for the Northern District of Ohio, which was
denied on May 18, 1999. The district court also denied McDonald a certificate of appealability. On
February 1, 2000, McDonald was again denied a certificate of appealability in response to his filing
a notice of appeal with the district court.
        In yet another reversal of her story, on December 21, 2001, Krista Harris signed an affidavit
in which she stated that the prosecutor in McDonald’s trial, Kevin Baxter, coerced her into a non-
consensual sexual relationship by threatening false criminal charges. Moreover, Harris stated that
Baxter used these threats to coerce her into providing perjured testimony in McDonald’s case.
These allegations were also corroborated by Edward Jay Baxter, Kevin Baxter’s brother, who stated
in an affidavit signed on April 23, 2003, that Kevin Baxter “coerced Krista Harris to lie in a drive-by
shooting, then forced her into a non consensual relationship.”1
        After unsuccessfully pursuing multiple avenues for appeal of his conviction in state courts
in reliance on this newly discovered evidence, McDonald, pursuant to 28 U.S.C. § 2244(b), now
seeks authorization to file a second petition of habeas corpus with the district court. McDonald
argues that such a petition should be granted because his conviction was based upon, in part,
perjured testimony, constituting a violation of his rights under the Due Process Clause. In addition,
McDonald argues that this court should grant him permission to file a second habeas corpus petition
because
        the factual predicate for the claim could not have been discovered previously through
        the exercise of due diligence; and 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)(B).
                                                           II.
        The present motion before the court requests authorization to file a second habeas corpus
petition in accordance with the requirements of 28 U.S.C. § 2244(b)(3)(A): “Before a second or
successive application permitted by this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the district court to consider the
application.” In turn, “The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C). McDonald

        1
            It is unclear whether Edward Jay Baxter had personal knowledge of the assertions in his affidavit.
No. 06-4120                In re McDonald                                                                          Page 3


argues that the claims underlying his requested second habeas corpus petition comply with 28
U.S.C. § 2244(b)(2), which states in relevant part:
         (2) A claim presented in a second or successive habeas corpus application under
         section [28 U.S.C. §] 2254 that was not presented in a prior application shall be
         dismissed unless –
                   ...
                   (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.
As McDonald notes, in compliance with 28 U.S.C. § 2244(b)(1), his claim has not been presented
in a prior application. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive
habeas corpus application under section [28 U.S.C. §] 2254 that was presented in a prior application
shall be dismissed.”).2
       In opposition to the instant motion, the government argues that McDonald’s claim is barred
because the factual predicate underlying the proffered constitutional error could have been
discovered by McDonald as early as 2001. Thus, the habeas corpus petition that McDonald seeks
permission to file would be barred by 28 U.S.C. § 2244(d)(1)(D):
         (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
         corpus by a person in custody pursuant to the judgment of a State court. The
         limitation period shall run from [] –
                   ...
                   (D) the date on which the factual predicate of the claim or claims presented
                   could have been discovered through the exercise of due diligence.
Consequently, the government argues that this court should, on these grounds, deny McDonald
permission to file a second habeas corpus petition.
         The government’s arguments, however, do not take the entire text of 28 U.S.C. § 2244(b)
into account. Section 2244(b)(3)(C) requires the relevant court of appeals to ensure that the
petitioner’s request for permission to file a second habeas corpus petition “satisfies the requirements
of this subsection.” (emphasis added). In contrast, 28 U.S.C. § 2244(b)(4) charges the district court,
and not the court of appeals, to “dismiss any claim presented in a second or successive application
that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies
the requirements of this section.” (emphasis added). Thus, investigating compliance with the one-
year statute of limitations outlined in 28 U.S.C. § 2244(d) – clearly a separate subsection from 28


         2
            To be sure, 28 U.S.C. § 2244(b)(3)(D) also states: “The court of appeals shall grant or deny the authorization
to file a second or successive application not later than 30 days after the filing of the motion.” However, this court has
held that this “provision is hortatory or advisory rather than mandatory . . . .” In re Siggers, 132 F.3d 333, 336 (6th Cir.
1997).
No. 06-4120               In re McDonald                                                                      Page 4


U.S.C. § 2244(b) – is not within the purview of the court of appeals’ consideration of applications
requesting authorization to file a second or successive habeas corpus petition pursuant to 28 U.S.C.
§ 2244(b).
        Indeed, not only does the text of the statute require this conclusion, but logic counsels that
a court of appeals considering a request for authorization to file a second or successive habeas
corpus petition would not consider whether or not the habeas corpus petition complies with the one-
year statute of limitations. When considering motions pursuant to 28 U.S.C. § 2244(b) for
permission to file a second or successive habeas corpus petition, the court does not have a developed
record because the new petition has not yet been considered by a district court. As a result, courts
of appeal cannot determine whether the one-year statute of limitations should be equitably tolled,
see, e.g., Souter v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (determining that, based upon the
particular facts of the case, the petitioner had presented sufficient evidence of actual innocence to
be granted equitable tolling); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (stating that
equitable tolling is available when the petitioner can demonstrate “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way”), or on what date
the defendant was able to discover the evidence in question through due diligence. See, e.g.,
Granger v. Hurt, 90 F. App’x 97, 99-101 (6th Cir. 2004) (finding that, because of the particular facts
of the case, the one-year period should begin after the date the information in fact became available);
see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure, 1447-
48 (5th ed. 2005) (“The statute limits the scope of review at this stage to the specific question
whether the motion makes a prima facie showing that any of the claims in the petition satisfy
AEDPA’s substantive successive petition standards, thereby evidently rendering irrelevant other
possible grounds for dismissal such as ultimate lack of merit, nonexhaustion, procedural default, and
the like.”). In fact, in the instant case, it is difficult to determine whether McDonald would run afoul
of the one-year statute of limitations given that Harris’s affidavit is dated December 21, 2001 and
McDonald first commenced state court proceedings on account of Harris’s affidavit on May 1, 2003.
If a district court were to find that, using reasonable due diligence, McDonald would have only
discovered the information by May 1, 2002 – less than five months after Harris signed her affidavit
– then a court might find McDonald in compliance with the one-year statute of limitations.
         Therefore, this court does not now consider whether McDonald’s claim would be deemed
beyond the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d) if filed in a district court.
Instead, this court leaves that inquiry to the district court once, and assuming, McDonald actually
files his second habeas corpus petition. See 28 U.S.C. § 2244(b)(4) (“A district court shall dismiss
any claim presented in a second or successive application that the court of appeals has authorized
to be filed unless 3the applicant shows that the claim satisfies the requirements of this section.”)
(emphasis added).
                                                         III.
        As McDonald concedes, he has already filed a previous habeas corpus petition and he
currently seeks to file a second or successive habeas corpus petition. Pursuant to § 2244(b), a court
of appeals will not allow a second or successive habeas petition unless:


         3
           For similar reasons, this court need not consider at this stage whether the petitioner’s claims have been
exhausted. See, e.g., Hatch v. Oklahoma, 92 F.3d 1012, 1016 (10th Cir. 1996) (“Exhaustion is not, however, a
precondition to our consideration of this Application for Order Authorizing a Successive Petition for Habeas Corpus
Relief. Were we to grant this application, the district court would then have before it the merits of Hatch’s habeas
petition, and in that context the district court would need to decide whether the claim was exhausted or whether waiver
of the exhaustion requirement is warranted.”), overruled on other grounds by Daniels v. United States, 254 F.3d 1180,
1188 (10th Cir. 2001); see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure,
1447-48 (5th ed. 2005) (arguing for the same).
No. 06-4120                 In re McDonald                                                                              Page 5


         (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 order for this court to grant permission to file a second or successive
habeas petition, the applicant must make a prima facie showing that his application satisfies the
statutory requirements.” Bowling v. Haeberline (In re Bowling), 422 F.3d 434, 436 (6th Cir. 2005);
28 U.S.C. § 2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.”). As this court has previously noted,
“‘Prima facie’ in this context means simply sufficient allegations of fact together with some
documentation that would ‘warrant a fuller exploration in the district court.’” In re Lott, 366 F.3d
431, 433 (6th Cir. 2004) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)); see
also In re Bowling, 422 F.3d at 436 (quoting Bennett, 119 F.3d at 469). Such a “‘prima facie
showing’ . . . is not a difficult standard to meet.” In re Lott, 366 F.3d at 432.
       McDonald proceeds on § 2244(b)(2)(B) grounds, arguing that the new information regarding
Harris’s perjured testimony constitutes evidence that
         could not have been discovered previously through the exercise of due diligence; and
         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)(B).
        Our sister circuits differ slightly on how to understand the “previously discovered”
requirement,4 but regardless of which standard we adopt, the evidence now proffered by McDonald
could not have been discovered at the time of his first habeas petition, which constituted the last
federal proceeding in this matter. Harris only recanted her trial testimony in an affidavit dated
December 21, 2001. McDonald’s previous habeas corpus petition was filed on May 28, 1998, and


         4
            The First, Fifth, and Eighth Circuits have all indicated that a factual predicate is deemed previously
discoverable if it could have been discovered at the time of the previous habeas petition. See Rodriguez v.
Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 274 (1st Cir. 1998); cf. Kutzner v. Cockrell, 303 F.3d 333, 336 (5th
Cir. 2002) (noting that the evidence in question could have been discovered at the time of the petitioner’s first habeas
petition); McDonald v. Bowersox, 125 F.3d 1183, 1186 (8th Cir. 1997) (same). However, the Fourth and Seventh
Circuits appear to have held that a factual predicate is deemed previously discoverable if it could have been discovered
at the time of the last federal proceeding, which includes a previous motion, pursuant to § 2244(b), seeking authorization
to file a second or successive habeas petition. See In re Williams, 364 F.3d 235, 239 & n.3 (4th Cir. 2004) (adopting
the previous motion standard and collecting cases); Bennett v. United States, 119 F.3d 470, 471 (7th Cir. 1997). Other
circuits have somewhat obscured the issue. See In re Provenzano, 215 F.3d 1233, 1236 (11th Cir. 2000) (concluding
that previously means “at least as late as the time of the filing of the first federal habeas petition”); United States v. Ortiz,
136 F.3d 161, 168 (D.C. Cir. 1998) (“The traditional definition of newly discovered evidence is evidence discovered
since the trial, at least with respect to motions for a new trial. . . .” (internal quotation marks omitted)).
No. 06-4120               In re McDonald                                                                         Page 6


denied on May 31, 1999. As a result, the evidence presented now by McDonald could not have been
previously discovered for the purposes of § 2244(b).
         McDonald’s motion for permission to file a second habeas corpus petition also requires a
finding that the facts surrounding Harris’s perjured testimony, if found to be true, would indeed
constitute a constitutional violation. This is undoubtedly the case. While there are any number of
potential due process violations that could be extracted from the allegations contained in both
Harris’s and Edward Baxter’s affidavits, there clearly is enough evidence to discern a Brady
violation as all three elements of a Brady violation obtain under the circumstances: “(1) the evidence
at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the state
must have suppressed the evidence, whether wilfully or inadvertently; and (3) prejudice must have
resulted.” Butler v. Renico, No. 05-1825, 2007 U.S. App. LEXIS 6103, at *11 (6th Cir. February 20,
2007) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
        In this case, the first two prongs are easily satisfied. Although her affidavit lacks a great deal
of specificity, Harris avers that the state willfully suppressed some of her potential alibi testimony
by ensuring she perjure herself. And, the state clearly failed to inform McDonald of any relationship
between Harris, a testifying witness, and the prosecutor. Both of these pieces of information were
clearly favorable to McDonald. As for the prejudice prong of the analysis, “one way to establish
the prejudice component of cause and prejudice is to establish Brady materiality.” Joseph v. Coyle,
469 F.3d 441, 462 (6th Cir. 2006) (citations omitted). And, as the Supreme Court has explained at
length, the Brady materiality inquiry
         is not a sufficiency of evidence test. A defendant need not demonstrate that after
         discounting the inculpatory evidence in light of the undisclosed evidence, there
         would not have been enough left to convict. The possibility of an acquittal on a
         criminal charge does not imply an insufficient evidentiary basis to convict. One does
         not show a Brady violation by demonstrating that some of the inculpatory evidence
         should have been excluded, but by showing that the favorable evidence could
         reasonably be taken to put the whole case in such a different light as to undermine
         confidence in the verdict.
Kyles v. Whitley, 514 U.S. 419, 434-35 (1995); see also Schledwitz v. United States, 169 F.3d 1003,
1012 (6th Cir. 1999) (citing Kyles and applying the standard). Thus, assuming the truth    of the facts
stated by Harris in her affidavit, all three elements of a Brady violation have occurred.5 As a result,
McDonald has made a prima facie showing of a constitutional violation in accordance with
§ 2244(b)(3); in other words, “the facts underlying [McDonald’s] claim, if proven” would constitute
a constitutional violation. 28 U.S.C. § 2244(b)(2)(B)(ii).
       Having identified the elements of a potential Brady violation, we can now return to our
primary inquiry, determining whether McDonald has made “a prima facie showing that his
application satisfies the statutory requirements.” Bowling, 422 F.3d at 436; see 28 U.S.C.


         5
            As argued by McDonald, the alleged conduct might also have violated the Due Process Clause by constituting
a knowing use of perjured testimony, see Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000) (“[I]n order to establish a
claim of prosecutorial misconduct or denial of due process, the defendant must show that the statement in question was
false, that the prosecution knew it was false, and that it was material.”), and it may also have constituted the denial of
McDonald’s right to present a witness in his own defense. See United States v. Emuegbunam, 268 F.3d 377, 400 (6th
Cir. 2001) (“Various prosecutorial and judicial actions aimed at discouraging defense witnesses from testifying deprive
a defendant of this right.”). However, as the new evidence presented by McDonald is sufficient to make out a Brady
claim, we need not consider how many permutations of due process violations we can conjure up based upon the same
set of facts.
No. 06-4120           In re McDonald                                                             Page 7


§ 2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.”). Given that the evidence in this case
could not have previously been discovered, this standard requires McDonald to have made a prima
facie showing that “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)(B)(ii). Thus while this standard does require that we evaluate McDonald’s new
evidence “in light of the evidence as a whole,” a court of appeals need only find that McDonald has
satisfied the prima facie standard advanced under 28 U.S.C. § 2244(b)(3)(C). And, as we have
previously explained, “‘Prima facie’ in this context means simply sufficient allegations of fact
together with some documentation that would ‘warrant a fuller exploration in the district court.’”
In re Lott, 366 F.3d at 433 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
In other words, we do not need to find that given the alleged constitutional violation no reasonable
factfinder would have found McDonald guilty of the underlying offense; instead, we simply must
determine whether there are “sufficient allegations” together with “some documentation” so as to
require a district court to engage in additional analysis in order to ascertain whether but for the
constitutional error, no reasonable factfinder would have found McDonald guilty of the underlying
offense.
         McDonald satisfies this standard. At McDonald’s trial, the state did not present any
eyewitnesses who saw McDonald at the scene of the crime – only a witness who saw three
individuals in a car from where shots were fired. The state also presented testimony regarding
McDonald’s role in the underlying altercation that allegedly served as the impetus for the shooting.
However, given the lack of direct evidence linking McDonald to the underlying crimes, Harris’s
recanting of her trial testimony looms large. The existence of an alleged relationship between Harris
and the prosecutor combined with the possibility that Harris could have provided McDonald with
an alibi at trial clearly should “undermine our confidence in the verdict,” Kyles, 514 U.S. at 435, and
therefore “‘warrant[s] a fuller exploration in the district court.’” In re Lott, 366 F.3d at 433 (quoting
Bennett, 119 F.3d at 469)). Thus McDonald has made the requisite prima facie case necessary for
this court to grant him permission to file a second habeas corpus petition.
                                           CONCLUSION
       For the foregoing reasons, we authorize McDonald to file a second habeas corpus petition
with the district court.
