                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0612n.06

                                           No. 02-4145                                  FILED
                                                                                  Dec 05, 2018
                           UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


DAVID WAYNE ALLEN,                                       )
                                                         )
       Petitioner-Appellant,                             )
                                                         )
v.                                                       )           ORDER
                                                         )
BETTY MITCHELL,                                          )
                                                         )
       Respondent-Appellee.                              )


Before: SILER, MOORE, and BUSH, Circuit Judges.

       David Allen, an Ohio prisoner under sentence of death, moves to remand his appeal with
leave to amend his original petition for a writ of habeas corpus to include a claim under Brady v.
Maryland, 373 U.S. 83 (1963), and a claim of ineffective assistance of counsel. The Brady claim
is based on DNA evidence developed in state court after the denial of Allen’s habeas petition.
Allen has not explained the basis for his proposed ineffective assistance of counsel claim. He has,
therefore, forfeited that issue. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).
       Allen was convicted of aggravated robbery and aggravated murder with death-penalty
specifications in 1991. Chloie English was found stabbed, beaten, and strangled to death in her
home. Allen’s thumbprint was found on the inside of one of the lenses of English’s glasses,
cigarette butts consistent with Allen’s brand (Dorals) and saliva (type O secretor) were found in
English’s trash can, and Allen knew English through a prison ministry program. The Ohio Court
of Appeals affirmed Allen’s convictions and sentence in 1993, State v. Allen, No. 62275, 1993 WL
366976 (Ohio Ct. App. Sept. 9, 1993), and the Ohio Supreme Court affirmed in 1995, State v.
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Allen, 653 N.E.2d 675 (Ohio 1995). Allen’s efforts at post-conviction relief in the Ohio courts
were unsuccessful.
       Allen filed a petition for a writ of habeas corpus in 1999. The district court denied the
petition in 2002, and granted Allen a certificate of appealability as to his claim that a biased juror
served on the jury. We denied Allen’s motion to expand the certificate of appealability and
directed that Allen’s appeal proceed on the claim certified by the district court. But in February
2006, Allen’s state trial court granted his motion for DNA testing of blood found on his jacket and
on gloves found near the victim. Consequently, in April 2006, Allen filed a motion asking us to
hold briefing in abeyance pending completion of that DNA analysis. We granted the motion, and,
for eleven years, Allen filed periodic status reports advising us of the state-court proceedings.
       The state court ordered additional DNA testing in May 2011. Based on the results of the
DNA testing, Allen filed a supplemental motion for a new trial and to set aside the death-penalty
determination in November 2011. Allen’s motion relied on Ohio Rule of Criminal Procedure 33
and on Brady. He alleged that (1) the state failed to disclose blood-stained gloves found at the
scene of the murder and (2) the state failed to disclose a police report in which the victim’s
neighbor said she saw a black male approach the victim’s home on January 23 or 24, 1991.
(English was last seen alive on January 24 and was found dead on January 25.) The trial court
denied the motion without a hearing, and the Ohio Court of Appeals affirmed. State v. Allen, No.
103492, 2016 WL 5630980, at *8 (Ohio Ct. App. Sept. 29, 2016).
       The Ohio Court of Appeals summarized the results of the DNA testing of the gloves as
follows:
       (1) due to a low amount of male DNA and a possible mixture, no determination
       could be made regarding the DNA profile obtained from the exterior of the right
       glove; (2) a DNA mixture of at least two males was detected in the interior of the
       right glove, but due to the low amount and possible mixture, no determination could
       be made as to whether Allen was a contributor; (3) male DNA was not detected on
       the exterior of the left glove; and (4) the interior of the left glove produced a DNA
       mixture of at least two males. Allen was excluded as a contributor to the DNA
       recovered from the interior of the left glove.
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Allen, 2016 WL 5630980, at *4. The Ohio Court of Appeals held that Allen had not demonstrated
a Brady violation because Allen’s trial counsel had the opportunity to learn of the evidence before
and during the trial. Id. at *5. The court also held that the trial court did not abuse its discretion
when it denied Allen’s motion for a new trial because there was not a strong probability that the
glove DNA evidence would have changed the result of the trial. Id. at *5. Finally, the Ohio Court
of Appeals rejected Allen’s argument that other evidence supported his motion for a new trial. Id.
at *6.
         Allen asks us for authorization to amend the Brady claim in his habeas petition. With only
limited exception not applicable here, a second-in-time habeas application that challenges the same
state-court judgment as the first habeas application is second or successive.                              Magwood v.
Patterson, 561 U.S. 320, 337 (2010). 1 And, “a motion to amend that seeks to raise habeas claims
is a second or successive habeas petition when that motion is filed after the petitioner has appealed
the district court’s denial of his original habeas petition or after the time for the petitioner to do so
has expired.” Moreland v. Robinson, 813 F.3d 315, 324 (6th Cir. 2016) (emphasis added); see



1
  The circumstances in which a second-filed petition does not count as “second or successive” concern when a ground
for relief in that petition was in fact raised in the first petition but not decided on the merits. For example, “in Stewart
v. Martinez-Villareal, [523 U.S. 637 (1998),] the Supreme Court held that a subsequent petition was not ‘second or
successive’ when the claim had been raised in the initial petition but dismissed as unripe, even though the other claims
presented in the initial petition were decided on the merits.” In re Salem, 631 F.3d 809, 812 (6th Cir. 2011) (citing
Stewart, 523 U.S. at 643–46). For example, in In re Salem, the claim at issue, entrapment, was “presented in the initial
habeas petition” but “was unripe for review.” Id. at 813. By contrast, Allen’s Brady claim based on the glove DNA
evidence was not raised in his first federal habeas petition; therefore, his motion is properly deemed a second or
successive petition. The dissent points to Panetti v. Quaterman, 551 U.S. 930 (2007) for the proposition that “claims
may be raised for the first time in a second-in-time petition without rendering the petition second or successive.”
Dissent at 6. However, the dissent’s application of Panetti stretches its narrow holding, which is premised on the
Eighth Amendment’s prohibition of carrying out a sentence of death upon a prisoner who is insane. See Panetti,
551 U.S. at 934 (citing Ford v. Wainwright, 477 U.S. 399, 409–10 (1986)). The Panetti Court held that “Ford-based
incompetency claims, as a general matter, are not ripe until after the time has run to file a first habeas petition.” Id. at
943. Thus, to escape § 2244’s stringent requirements, each prisoner would have to file an unripe (and perhaps
meritless) Ford claim in every § 2254 petition in order to preserve the claim for the future, should a prisoner later
experience competency issues. The Panetti Court found that such distortion for Ford-based competency claims is not
warranted. Therefore, based on the Ford claim’s unripeness at the time of the first habeas petition, the Court held that
“[t]he statutory bar on ‘second or successive’ applications does not apply . . . .” Id. at 947. Here, by contrast, Allen
does not contend that the glove DNA testing claim became ripe after the time expired for him to raise it as an issue in
his original habeas petition, and similar constitutional concerns as those in Panetti are not at issue.
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                                                         -4-

also Post v. Bradshaw, 422 F.3d 419 (6th Cir. 2005). 2 Under the Antiterrorism and Effective
Death Penalty Act (AEDPA), then, Allen must clear a high hurdle before we may authorize the
district court to entertain his motion to amend: as Allen recognizes, Mot. to Remand at 8, he must
make a prima facie showing of (1) a new rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court, or (2) newly discovered evidence that could not have been
discovered previously through the exercise of due diligence and which, “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)(3)(C). A prima facie showing consists of
sufficient allegations of fact together with documentation that would “warrant a fuller exploration
in the district court.” Keith v. Bobby, 551 F.3d 555, 557 (6th Cir. 2009) (quoting In re Lott,
366 F.3d 431, 433 (6th Cir. 2004)).
         The claims in Allen’s second or successive petition do not meet the criteria of 28 U.S.C.
§ 2244(b). They do not rely on a new rule of constitutional law made retroactive by the Supreme
Court. See In re Campbell, 874 F.3d 454, 467 (6th Cir.), cert. denied, 138 S. Ct. 466 (2017).
Allen’s Brady claim does rely on newly discovered evidence that could not have been discovered
previously through the exercise of due diligence. The gloves themselves were apparent in a
videotape of the crime scene, but the DNA analysis obtained through the proceedings in state court
was unavailable at the time of his trial in 1991; indeed, it was not until 1992 that the Supreme
Court of Ohio first recognized the admissibility of DNA evidence. See State v. Pierce, 597 N.E.2d


2
  The dissent seeks to distinguish Moreland and Post on the basis that “Allen did not file a motion to amend while his
initial habeas appeal was actively pending, as in Moreland and Post, but instead moved to remand after his appeal had
been held in abeyance so that Allen could pursue the very arguments in state court that he now seeks to raise on federal
habeas review.” Dissent at 8. But, there is nothing in this court’s order holding the habeas appeal in abeyance to
suggest it was intended to deem or allow the federal petition to be amended to add the glove DNA claim or that this
court’s suspension of its proceedings while Allen pursued state-court habeas relief on this claim changed the scope of
his federal petition in any way. Rather, we held the habeas appeal in abeyance for the simple reason that if Allen had
prevailed on the glove DNA claim stated in his state-court petition, then that would have obviated the need for this
court to rule on the merits of the appeal of the federal petition. The abeyance did not change the fact that this original
federal petition did not include the glove DNA claim, and therefore Allen’s new assertion of that claim in federal court
as part of the motion to remand constitutes a second or successive petition.
                                            No. 02-4145
                                                -5-

107, 112 (Ohio 1992). Still, Allen has not presented either a prima facie case of constitutional
error, or proof sufficient to establish by clear and convincing evidence that no reasonable factfinder
would have found him guilty. See 28 U.S.C. § 2244(b)(2), (b)(3)(C); Magwood, 561 U.S. at 330.
At most, the DNA analysis reveals that multiple men had, at some point, left DNA in gloves found
near English’s body. A reasonable factfinder could take this evidence to suggest that, contrary to
the prosecution’s theory of the case, two male perpetrators collaborated in English’s demise. But,
weighed against the damning evidence of Allen’s thumbprint on English’s glasses together with
the other evidence adduced at trial, this DNA analysis falls far short of AEDPA’s stringent
requirement for clear and convincing evidence that no reasonable factfinder would have adjudged
Allen guilty of English’s murder. The other evidence included, for example, that English was
killed by someone she knew because the doors to her house were found unlocked, she did not open
the door to strangers, and there were no signs of forced entry. English knew Allen through a prison
ministry program. Doral brand cigarette butts with saliva from a type O secretor were found in
English’s trash. Allen smoked Dorals, is a type O secretor, and English did not smoke. The
coroner put English’s time of death at between midnight and six a.m. on January 25. A bus driver
remembered picking up Allen a little after six in the morning on January 25 near English’s home.
Allen, 653 N.E.2d at 682.
       Thus, “viewed in light of the evidence as a whole,” 28 U.S.C. § 2244(b)(2), the presence
of DNA on the gloves from at least one man other than Allen does not warrant fuller exploration
in the district court. See Keith, 551 F.3d at 557.
       For the foregoing reasons, Allen’s motion to remand with leave to amend his petition is
DENIED.
                                            No. 02-4145
                                                -6-

       KAREN NELSON MOORE, Circuit Judge, dissenting. If Allen’s motion for remand

were a second-or-successive petition for habeas relief, I would agree with the majority’s

conclusion that Allen’s claims have failed to satisfy the stringent criteria set forth in 28 U.S.C.

§ 2244(b). Because I do not, however, agree that Allen’s motion is second or successive under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), I must respectfully dissent.

       The majority offers two reasons for treating Allen’s motion to remand as a second-or-

successive petition under AEDPA. First, the majority suggests that the only second-in-time

petitions that do “not count as ‘second or successive’” are those where “a ground for relief in [the

second] petition was in fact raised in the first petition but not decided on the merits.” Maj. at 3

n.1. The Supreme Court has long recognized, however, that claims may be raised for the first time

in a second-in-time petition without rendering the petition second or successive under AEDPA. In

Panetti v. Quarterman, 551 U.S. 930 (2007), the Supreme Court considered how to categorize a

petitioner’s second-in-time petition that raised a competency claim under Ford v. Wainwright,

477 U.S. 399 (1986), given that the petitioner’s “first habeas application, which was fully and

finally adjudicated on the merits, [had] failed to raise a Ford claim.” Id. at 942 (citation and

quotation marks omitted). The Panetti Court held that the petitioner’s second-in-time petition

should not be treated as second or successive, notwithstanding the petitioner’s failure to raise a

Ford claim in his first petition, because the petitioner filed his “Ford-based incompetency claim

. . . as soon as that claim [became] ripe.” Id. at 945. In light of Panetti, the majority’s suggestion

that second-in-time petitions can never include newly raised claims is incorrect.

       The majority ignores the fact that Panetti expanded upon Martinez-Villareal and,

moreover, that we have not limited Martinez-Villareal to Ford claims. See Stewart v. Martinez-

Villareal, 523 U.S. 637, 643–46 (1998) (holding that a Ford claim, raised for the second time after
                                             No. 02-4145
                                                 -7-

petitioner’s first claim was dismissed as premature, was not a “second or successive” petition under

AEDPA); In re Salem, 631 F.3d 809, 813 (6th Cir. 2011) (applying Martinez-Villareal to an

entrapment claim). There is no good reason to so limit Panetti. Indeed, one reading the majority’s

take on Panetti might (mistakenly) think that the Panetti dissent was actually the opinion of the

Court. Compare Maj. at 3 n.1 (describing Panetti as “narrow” and “premised on [Ford claims].”),

and id. (“By contrast, Allen’s Brady claim . . . was not raised in his first federal habeas petition;

therefore, his motion is properly deemed a second or successive petition.”), with Panetti, 551 U.S.

at 968 (Thomas, J., dissenting) (“Today’s decision thus stands only for the proposition that Ford

claims somehow deserve a special . . . exemption from [AEDPA’s] plain import.”), and id. at 966

(Thomas, J., dissenting) (“In [Martinez-Villareal], however, the applicant had raised a Ford claim

in his initial habeas application.”). Looking to the Court’s majority opinion in Panetti, however,

reveals that the Court expanded Martinez-Villareal because, despite the “force” of the argument

that § 2244 (and precedent) foreclosed an adjudication of petitioner’s previously-unraised claim,

that argument raised concerns. Panetti, 551 U.S. at 943. Here, treating Allen’s Brady claim as

second or successive would incentivize state prosecutors to withhold materially exculpatory

evidence until after a petitioner exhausts his initial federal habeas claims; and, as explained below,

foreclosing adjudication unnecessarily restricts federal habeas review of Brady violations. Cf. In

re Salem, 631 F.3d at 813 (citing Martinez-Villareal, 523 U.S. at 645). These concerns justify

applying Panetti in this case so that Allen can receive an adjudication of his claim.

        Second, the majority notes that “a motion to amend that seeks to raise habeas claims is a

second or successive habeas petition when that motion is filed after the petitioner has appealed the

district court’s denial of his original habeas petition or after the time for the petitioner to do so has

expired.” Maj. at 3 (quoting Moreland v. Robinson, 813 F.3d 315, 324 (6th Cir. 2016)). The rule
                                           No. 02-4145
                                               -8-

announced in Moreland is derived from Post v. Bradshaw, 422 F.3d 419 (6th Cir. 2005), in which

we held that a district court could not grant a petitioner’s Rule 60(b) motion to vacate its order

dismissing the petitioner’s initial habeas petition unless the motion satisfied the requirements for

filing a second-or-successive petition under AEDPA because the petitioner had already initiated

an appeal of the district court’s order, and the claims raised in the Rule 60(b) sounded in habeas

rather than Rule 60(b) grounds for relief. While I recognize Moreland’s and Post’s precedential

value, I would treat both cases as distinguishable. Here, Allen did not file a motion to amend while

his initial habeas appeal was actively pending, as in Moreland and Post, but instead moved to

remand after his appeal had been held in abeyance so that Allen could pursue the very arguments

in state court that he now seeks to raise on federal habeas review. We have previously treated the

possibility that new DNA tests would lead to “further state-court action for which this court should

wait” as a factor weighing in favor of granting a defendant’s motion to stay and hold in abeyance

a federal habeas appeal. See Hodge v. Haeberlin, 579 F.3d 627, 637 (6th Cir. 2009). Such

reasoning makes sense and is reconcilable with our earlier holding in Post only if new claims

arising out of the state-court action would not be treated as second or successive once the stay were

lifted. In other words, if a petitioner must satisfy AEDPA’s gatekeeping provisions regardless of

whether his initial habeas claims were stayed or adjudicated, then there would be little point in

staying the initial appeal. I therefore would hold that Post’s and Moreland’s rule does not apply

to cases, like this one, where the federal habeas appeal was held in abeyance pending the resolution

of additional state-court proceedings.     To my knowledge, no precedent precludes applying

Moreland and Post in this way.

       The majority posits that we might want to grant stays in such circumstances because there

would ultimately be no need for a federal court to decide a petitioner’s federal habeas petition if
                                            No. 02-4145
                                                -9-

the state courts instead grant relief on the state-court petition. See Maj. at 4 n.2. This may explain

why we, as a federal appellate court, might wish to delay consideration of Allen’s federal habeas

petition. But the majority’s hypothesis does not explain why a habeas petitioner would seek to

stay and hold in abeyance a federal habeas appeal, as Allen did here. From Allen’s perspective,

he was better off having us decide whether he is entitled to federal habeas relief sooner rather than

later if he could not bypass AEDPA’s second-or-successive gatekeeping requirements by staying

his federal appeal. When we recognized in Hodge that the possibility of further state-court action

counsels in favor of granting a petitioner’s request to stay a federal habeas appeal, we necessarily

also recognized that federal habeas appellants have something to gain by requesting a stay in their

federal habeas appeals. See Hodge, 579 F.3d at 637. Here, that “something” is the opportunity to

have a federal appellate court review whether the state courts’ rejection of Allen’s Brady claim

means that Allen is being held “in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). Under the majority’s reasoning, the state courts’ resolution

of Allen’s Brady claim—even if absolutely wrong—can never be reviewed by any federal tribunal

unless Allen can demonstrate by clear-and-convincing evidence that, but for the Brady violation,

no reasonable factfinder would have found him guilty. See 28 U.S.C. § 2244(b)(2)(B)(ii). This is

precisely the sort of “far reaching and seemingly perverse” result the Supreme Court has twice

extoled us to avoid. Panetti, 551 U.S. at 943 (quoting Martinez-Villareal, 523 U.S. at 644).

       Because the majority disagrees, I respectfully dissent.


                                               ENTERED BY ORDER OF THE COURT




                                               Deborah S. Hunt, Clerk
