                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0213p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 IN RE: DOUGLAS L. COLEY,                                 ┐
                                               Movant.    │
                                                           >      Nos. 17-3071/3815
                                                          │
                                                          ┘

                       On Motion to Authorize the Filing of a Second or
                      Successive Application for Habeas Corpus Relief.
              No. 1:02-cv-00457; 3:17-cv-00088—James S. Gwin, District Judge.

                             Decided and Filed: September 11, 2017

                      Before: MERRITT, SILER, and SUTTON, Circuit Judges.
                                  _________________

                                           COUNSEL

ON MOTION: Joseph E. Wilhelm, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Movant. ON RESPONSE: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Respondent.

        The court delivered a PER CURIAM order. MERRITT, J. (pp. 4–5), delivered a separate
dissenting opinion.

                                       _________________

                                             ORDER
                                       _________________

       In these combined appeals, Douglas Coley asks this court to remand his case to the
district court or to grant him permission to file a second or successive petition under 28 U.S.C.
§ 2254. See 28 U.S.C. § 2244(b)(3)(A). In either scenario, Coley hopes to argue that the
Supreme Court’s recent decision in Hurst v. Florida, 136 S. Ct. 616 (2016), renders Ohio’s
death-penalty scheme unconstitutional. We DENY both requests.
 Nos. 17-3071/3815                        In re Coley                                     Page 2


       In 1998, a jury convicted Coley of one count of attempted murder, two counts each of
kidnapping and aggravated robbery, and three counts of aggravated murder (with the felony-
murder aggravating circumstance attached to each count). He was sentenced to prison and death.
After unsuccessfully pursuing several avenues of state-court relief, he filed a federal habeas
corpus petition on January 2, 2003. The district court denied the petition in 2010, and we
affirmed. Coley v. Bagley, 706 F.3d 741, 746 (6th Cir. 2013).

       In 2017, Coley filed a new federal habeas petition. The district court transferred it here
for permission to be filed.

       Coley cannot satisfy the dictates of § 2244(b). In the petition before us, Coley argues that
Ohio’s capital-sentencing scheme, which permits the jury to return a general verdict, is
unconstitutional in light of Hurst v. Florida. He believes that Hurst announced a new rule
requiring juries to make specific findings about mitigating evidence during capital sentencing.
But even if we assume that Hurst announced “a new rule of constitutional law,” the Supreme
Court has not “made [Hurst] retroactive to cases on collateral review.” See Tyler v. Cain, 533
U.S. 656, 662–63 (2001). Whether or not Hurst says what Coley thinks it says, we cannot
authorize his petition. See 28 U.S.C. § 2244(b)(3)(C).

       Coley’s only way around this problem is to argue that his petition falls outside of
§ 2244’s ambit because it is not “second or successive,” even though it is second in time.
According to Coley, his new petition is “based on Hurst, which was not decided” when he filed
his first petition. Therefore, he maintains, the new petition is not abusive, not successive, and
not subject to § 2244(b).

       It’s true that not all second-in-time petitions are “second or successive.” Panetti v.
Quarterman, 551 U.S. 930, 944 (2007). But this not-second-or-successive exception is generally
restricted to two scenarios. The first is where ripeness prevented, or would have prevented, a
court from adjudicating the claim in an earlier petition. See Stewart v. Martinez-Villareal,
523 U.S. 637, 645 (1998) (noting that “in [such] situations, the habeas petitioner does not receive
an adjudication of his claim”). The second is where a federal court dismissed an earlier petition
because it contained exhausted and unexhausted claims and in doing so never passed on the
 Nos. 17-3071/3815                       In re Coley                                      Page 3


merits. See Slack v. McDaniel, 529 U.S. 473, 485–86 (2000). Slack indicated that it would still
be an “abuse of the writ” if a petitioner chose to proceed in federal court with his exhausted
claims rather than return to state court with the unexhausted ones, but then later chose to file
another federal petition raising the newly exhausted claims. Id. at 486–87.

       What the exception cannot mean is what Coley claims it means: that a petition is not
second or successive whenever it relies on a rule that did not exist when the petitioner filed his
first petition. See In re Tibbetts, 2017 WL 3204732, at *2 (6th Cir. July 24, 2017). That is
precisely the scenario that § 2244(b)(2)(A) addresses, where a petitioner brings a claim relying
on a new rule of constitutional law. Under Coley’s proposed approach, the second-or-successive
exception “would considerably undermine—if not render superfluous—” the second-or-
successive rule. Magwood v. Patterson, 561 U.S. 320, 335 (2010).

       Our dissenting colleague, with respect, would similarly write § 2244(b)(2)(A) out of the
statute. He suggests that Coley, by pointing to Hurst’s new rule, relies on a “factual predicate
[that] could not have been discovered previously.” 28 U.S.C. § 2244(b)(2)(B)(i). It cannot be
that every new legal rule, including those not made retroactive on collateral review, also
constitutes a new factual predicate. But even if we could use (b)(2)(B) to render (b)(2)(A) a
nullity, Coley has not shown that the facts underlying his claim “would be sufficient to establish
by clear and convincing evidence” that no reasonable juror would have found him guilty. Id.
§ 2244(b)(2)(B)(ii).

       Coley separately argues that applying § 2244(b) to his new petition would effectively
suspend the writ of habeas corpus. See U.S. Const. art. I, § 9, cl. 2. But the Supreme Court has
recognized that enforcing “restrictions on successive petitions” does no such thing. Felker v.
Turpin, 518 U.S. 651, 664 (1996).

       Accordingly, we DENY Coley’s request to remand this case to the district court and
DENY his application for permission to file a second or successive habeas corpus petition.
 Nos. 17-3071/3815                        In re Coley                                      Page 4


                                       _________________

                                            DISSENT
                                       _________________

       MERRITT, Circuit Judge, dissenting. In this death penalty case, the petitioner, Coley,
should have the opportunity to try to show that his execution is inconsistent with constitutionally
required allocation of jurisdiction between judge and jury. Coley seeks to present a second
habeas application. His theory is that the recent case of Hurst v. Florida, 136 S. Ct. 616 (2016),
forbids a state from imposing the death penalty when a judge herself makes the final decision to
impose the death penalty after receiving merely a “recommendation” from the jury. In making
the decision to allow or disallow the case to go forward in the district court, my colleagues and I
agree that we must follow the statutory instructions set out in 28 U.S.C. § 2244, but we do not
agree on their application to this case. The statute is not entirely clear but reads in the relevant
part, as follows:

              (b)(1) A claim presented in a second or successive habeas corpus
       application under section 2254 that was presented in a prior application shall be
       dismissed.
              (2) 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.

               (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.
               (B) A motion in the court of appeals for an order authorizing the district
       court to consider a second or successive application shall be determined by a
       three-judge panel of the court of appeals.
 Nos. 17-3071/3815                        In re Coley                                      Page 5


               (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.

       Under the record before us, it seems clear that section (b)(2)(A) requiring that the
Supreme Court has made the habeas claim in question valid “retroactively” is not met, but there
is a “prima facie showing” under section (b)(3)(C) that the “factual predicate for the claim could
not have been discovered previously through the exercise of due diligence.” This is because the
Supreme Court in Hurst had to overrule prior cases to reach its conclusion that juries, not judges,
must make the final decision. This made the fact that a judge rather than a jury decided the
sentence irrelevant and not an issue that due diligence could affect.

       It seems to me that Coley has complied with section (b) and I would, therefore, grant his
request to authorize “the district court to consider the application” under section (b)(3)(A). That
may give him a chance to avoid the death penalty.
