        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                   2     In re Lott                                    No. 04-3462
     ELECTRONIC CITATION: 2004 FED App. 0120P (6th Cir.)
                 File Name: 04a0120p.06                           stayed pending adjudication of the claim in the district court.
                                                                  The district court is authorized to consider the application.
UNITED STATES COURT OF APPEALS                                       The Brady claim (not tied to the actual innocence aspect of
                                                                  the claim) was presented in Lott’s first federal habeas
                FOR THE SIXTH CIRCUIT                             petition, but we ruled that the claim was procedurally barred
                  _________________                               and did not reach the constitutional merits of the claim. Lott
                                                                  v. Coyle, 261 F.3d 594, 619 (6th Cir. 2001) (“Lott never
 In re: GREGORY LOTT ,      X                                     raised in state court the specific objection he raises today, and
                    Movant. -                                     thus we are foreclosed from reviewing it”). We interpreted
                             -                                    Ohio state law to create an adequate and independent state
                             -           No. 04-3462              ground precluding the federal court from reaching the claim.
                             -                                    Id. at 617-19. As to the “actual innocence” or “miscarriage of
                              >                                   justice” aspect of the claim, we concluded that “since the
                             ,
                            N                                     issue may now be pending in state court and has not been
                                                                  fully briefed before us, we reach no final conclusion....” Id.
                                                                  at 619. Thus, no federal court has decided the constitutional
                    Filed: April 22, 2004                         merits of the petitioner’s Brady claim or his actual innocence
                                                                  claim.
  Before: BOGGS, Chief Judge; MERRITT and COLE,
                  Circuit Judges.                                   After our opinion, the Ohio courts did in fact reach the
                                                                  Brady claim on the merits based on a second petition for post-
                    _________________                             conviction relief filed in state court. State v. Lott, Nos.
                                                                  79790, 79791, 79792, 2002 WL 1255579 (Ohio Ct. App. May
 ORDER AUTHORIZING THE DISTRICT COURT                             30, 2002). The state court fully adjudicated the constitutional
 TO CONSIDER SECOND APPLICATION FOR A                             merits of the Brady claim, discussing at length the facts on the
  BRADY, ACTUAL INNOCENCE, GATEWAY                                merits and deciding the merits against the petitioner.
                 CLAIM
            _________________                                        Thus, this current application for a second federal petition
                                                                  is, if granted, the first time in a federal court that the “factual
   The petitioner, Lott, scheduled to be executed April 27,       predicate” for the constitutional claim would be recognized
2004, in Ohio, has applied for an Order under 28 U.S.C.           and adjudicated. Although the “factual predicate” for the
§ 2244(b) (pertaining to “second or successive habeas corpus”     claim was discovered prior to the adoption of AEDPA, when
petitions), directing the district court to consider his actual   new stringent requirements were first imposed in death cases,
innocence claim based on evidence withheld in violation of        this is the first time since the adoption of AEDPA that a
Brady v. Maryland, 373 U.S. 83 (1963). He has made the            federal court could consider the merits of the constitutional
requisite “prima facie showing” under 28 U.S.C.                   claim. It is not the fault of Lott or his counsel that this is the
§ 2244(b)(3)(C). The application is granted and the execution     first time since AEDPA’s adoption that a federal court could
                                                                  consider the claim on the merits. This means, we believe, that

                              1
No. 04-3462                                   In re Lott       3   4       In re Lott                                         No. 04-3462

the second petition should be authorized if the petitioner in      of Lott’s case fraudulently failed to disclose at trial that the
his application makes simply a “prima facie showing” that the      murder victim, before dying, identified a person with a
facts underlying the claim “if proven and viewed in the light      different skin color from Lott as his assailant. The petitioner
of the evidence as a whole, would be sufficient to establish by    Lott has also made a prima facie showing that the victim
clear and convincing evidence that, but for constitutional         identified his assailant as someone whom he had seen at his
error, no reasonable fact finder would have found the              local barber shop and that the prosecutor at trial fraudulently
applicant guilty of the underlying offense.” 28 U.S.C.             refused to reveal this fact as well. In addition, the petitioner
§ 2244(b)(2)(B)(ii).                                               Lott has made a prima facie showing that the prosecutor at
                                                                   trial falsely stated to the court that the instrumentality that
  A “prima facie showing,” as Judge Posner pointed out for         caused the victim’s death — namely, kerosene lamp fluid —
the Seventh Circuit, is not a difficult standard to meet:          was not present in the victim’s house and had to be brought
                                                                   into the house for the purpose of killing the victim by the
  By “prima facie showing” we understand (without                  petitioner Lott. The petitioner Lott has made a prima facie
  guidance in the statutory language or history or case law)       showing that the victim had a kerosene gas lamp in his home
  simply a sufficient showing of possible merit to warrant         which he used, a lamp that would have used the type of
  a fuller exploration by the district court. All that we          kerosene lamp fluid which caused the victim’s death. Lott
  usually have before us in ruling on such an application,         has made a prima facie showing that the prosecutor made
  which we must do under a tight deadline (see 28 U.S.C.           statements to the court at trial directly contrary to these facts
  § 2244(b)(3)(D)), is the application itself and documents        which he knew to be true in order to use the lamp fluid to
  required to be attached to it, consisting of the previous        prove premeditation, an element required in order for the
  motions and opinions in the case.                                prosecutor to secure the death penalty. Through the citation
                                                                   and quotation of many Ohio opinions, Lott has also made a
Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997).       prima facie showing that the prosecutor has been guilty of
“Prima facie” in this context means simply sufficient              similar misconduct in more than ten other cases.1
allegations of fact together with some documentation that
would “warrant a fuller exploration in the district court.”
Those allegations of fact, together with documentation, are            1
clearly presented in the application before us. Judge Posner’s          Part of the prima facie case offered on this point is found on page 1
“tight deadline” point is further reinforced by subsection         of Lott’s application, as follows:
(b)(3)(E), which states that “the grant or denial of an                Mr. Lott’s trial prosecutor, Ca rmen M arino, has a shameful track
authorization by a court of appeals to file a second or                record of breaking rules to win conviction s. See State v.
successive application shall not be appealable and shall not be        Liberato re, 69 Ohio St. 2d 583 , 589-90 (1982) (“the
the subject of a petition for rehearing or for a writ of               prosecutorial blunders in this case are too extensive to be
certiorari.” Congress has emphasized the need for quick                excused.”); State v. Owensby, 198 5 O hio App. L EX IS 73 51, *3
                                                                       (1985) (“prosecuto r’s com ments clearly outside the bounds of
action by the court without further review.                            mere ‘earnestness and vigo r[.]’”); State v. Heinish, 198 8 O hio
                                                                       App. LEX IS 3644, *20 (19 88) (“Cle arly the prosecutor
  We conclude that this lenient prima facie standard is met            imprope rly commented on exclud ed ev idenc e.”); State v. Ha rris,
and that the matter should be adjudicated. Lott has made a             1990 Ohio App . LEXIS 5451 (1990) (prosecutorial misconduct
prima facie showing through documents that the prosecutor              found , but harmless); State v. Hedrick, 1990 O hio App. LEX IS
                                                                       5647 (1990) (prosecutorial misconduct by making improper
No. 04-3462                                           In re Lott         5   6     In re Lott                                    No. 04-3462

  Taking the evidence as a whole, we conclude that                                                  ______________
petitioner’s application makes a prima facie showing of
constitutional Brady error that, if proved in the district court,                                      DISSENT
may be sufficient to cause the fact finder to reach the                                             ______________
conclusion beyond a reasonable doubt that the petitioner was
not guilty of premeditatedly murdering the victim.                             BOGGS, Chief Judge, dissenting. After a thorough review
                                                                             of the record, I can discern no legal basis upon which we
  Obviously, the egregious prosecutorial misconduct alleged                  could, much less should, grant Lott’s request for
here, if proved, must be deterred. So long as we value the                   consideration of a second habeas petition. Therefore, I
rule of law, such conduct, if it occurred, cannot be tolerated               respectfully dissent.
in any kind of case — much less in death penalty cases.
                                                                                Lott appealed to this court the denial of his first petition for
  Accordingly, the application for an Order authorizing the                  habeas relief, and this panel affirmed. Lott v. Coyle, 261 F.3d
district court to proceed with his application is hereby granted             594 (6th Cir. 2001). Any disposition of a habeas petition on
and the execution of Lott is hereby stayed pending                           the merits, including dismissing on the grounds of procedural
adjudication in the district court.                                          default, means that a defendant has exhausted his unrestricted
                                                                             right to petition for habeas relief. In re Cook, 215 F.3d 606,
                                                                             608 (6th Cir. 2000); Harvey v. Horan, 278 F.3d 370, 379 -80
                                                                             (4th Cir. 2002) (citing cases from the Second, Fifth, and
                                                                             Tenth Circuits). The requirements for a successive habeas
                                                                             petition are strict and Lott cannot meet them.
    com ments on matters outside of record and on defendant’s                  The Antiterrorism and Effective Death Penalty Act
    failure to testify.); State v. Durr, 58 Ohio St. 3d 86 (1991)
    (improper com ments on the appellant’s unsworn statement, the
                                                                             (AEDPA) governs any subsequent petition for habeas relief;
    app ellant’s prior convictions, and mitiga ting factors held             the relevant part of the statute states:
    harmless.); State v. Keenan, 66 Ohio St. 3d 402 (1993)                     (b)(1) A claim presented in a second or successive
    (presenting an “aggravated example” of prosecutorial
    misconduct); State v. D’Am brosio, 67 Ohio St. 3d 185 (1993)               habeas corpus application under section 2254 that was
    (prosecutorial misconduct found, but either waived or harmless);           presented in a prior application shall be dismissed.
    State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993)
    (pro secuto rial misconduct “[rose] to the level of being
                                                                               (2) A claim presented in a second or successive habeas
    constitutional errors.”); State v. Matthews, 1999 Ohio App.                corpus application under section 2254 that was not
    LEX IS 896 , *5 (19 99) (prosecuto r denied making a deal with             presented in a prior application shall be dismissed
    witnesses, however, “[t]here is ample evidence to suggest that             unless—
    [the witness] at least did in fact receive just what the assistant
    county prosecutor said he would not give him.”); State v. Larkins          (A) the applicant shows that the claim relies on a new
    (Nov. 6 2003), Cuyahoga App. No. 82325, unreported                         rule of constitutional law, made retroactive to cases on
    (affirming grant of new trial upon finding that Marino withheld            collateral review by the Supreme Court, that was
    eyewitness descriptions not matching Larkin; hid a deal he                 previously unavailable; or
    struck to obtain the testimony of the only claimed eyewitness;
    then stood silent as she lied about the deal and her criminal
    record during trial).
No. 04-3462                                    In re Lott     7    8     In re Lott                                    No. 04-3462

   (B)(i) the factual predicate for the claim could not have       effect of the confession.”) (emphasis added). Nothing in the
   been discovered previously through the exercise of due          case law or statute suggests that our opinion was insufficient
   diligence; and                                                  to constitute adjudication of Lott’s first habeas petition and
   (ii) the facts underlying the claim, if proven and viewed       therefore relieve him of the burdens that AEDPA imposes.
   in light of the evidence as a whole, would be sufficient to       If we truly did “not reach the constitutional merits” of
   establish by clear and convincing evidence that, but for        Lott’s actual innocence claim, the court’s theory creates a
   constitutional error, no reasonable factfinder would have       clear mechanism for an end-run around the high bar of
   found the applicant guilty of the underlying offense.           § 2244. This order, resting as it does on our procedural,
28 U.S.C. § 2244 (b)(1)-(2).                                       rather than factual basis for a part of our ruling in Lott’s first
                                                                   appeal, means that a panel can give a capital defendant
   Lott briefed his Brady and actual innocence claims in his       exactly what AEDPA prohibits – two bites at the apple
first appeal of the habeas denial to this court. Appellant Br.,    without actually having to meet AEDPA’s standards for a
Lott v. Coyle, No. 99-4155, at 32 (Brady), 44 (actual              successive petition, simply by failing to rule on the factual
innocence). Therefore, under 28 U.S.C. § 2244(b)(1), he            merits of some claim.
cannot present them again. I question the assertion in the
order that this current petition is “the first time in a federal     For instance, the majority never really says that Lott met
court that the ‘factual predicate’ for the constitutional claim    the due diligence standard of § 2244(b)(2)(B)(i), it just slides
would be recognized and adjudicated.” (Maj. Op. at 2). It is       around it by saying that this petition would be “the first time
worth clarifying that the “factual predicate” for actual           in a federal court that the ‘factual predicate’ for the
innocence is exactly the same as the Brady claim: primarily        constitutional claim would be recognized and adjudicated,”
the victim’s description of his assailant. This issue was          though the majority immediately thereafter concedes that the
briefed in the original case; this panel considered the variance   evidence was discovered long ago. (Maj. Op. at 2).
in description in its original opinion. Lott, 261 F.3d at 618.       Lott has made no showing of a new rule of constitutional
The extent to which we “could” consider Lott’s constitutional      law, and therefore 28 U.S.C. § 2244(b)(2)(A) is not an avenue
claims has not changed between his two petitions. We could         of relief that is open to him.
consider his Brady claim in our earlier adjudication, did so,        Although Lott argues that his actual innocence claim is
and found it procedurally defaulted.                               predicated on evidence that the prosecution withheld and was
   We also could consider his actual innocence claim in 2001,      not available to the three-judge panel that convicted and
did so, and expounded upon it at length in dicta. We               sentenced him, the evidence came to light in 1991. Lott has
ultimately decided that we could not reach an adequate             had procedural difficulties getting the evidence before the
conclusion because of insufficient evidence in the record          courts, because his initial appellate lawyer chose not to
about a confession that Lott had made, which was suppressed        introduce it. However, the standard here is evidence that
because of a Miranda violation. Id. at 620-21. We simply           “could not” have been discovered with due diligence. Not
declined to decide whether Lott’s confession would preclude        only could the evidence here have been discovered, it was.
an actual innocence claim; we did not conclude that the claim      Clause (b)(2)(B)(i) is not satisfied.
itself was beyond our purview. Id. at 621 (“Since this issue         In sum, we are presented with a petition for successive
may now be pending in state court and has not been fully           habeas that does not meet the criteria of the statute governing
briefed before us, we reach no final conclusion regarding the
No. 04-3462                                   In re Lott     9    10    In re Lott                                   No. 04-3462

consideration of such claims. We have no legal basis on           with new reliable evidence”). No matter how strenuous the
which to grant it.                                                rhetoric of condemnation of the prosecutor here, it is no
  Even if I could be persuaded to ignore the statute, I can see   substitute for compliance with AEDPA.
no interpretation of the evidence in question that would “be         I will address briefly the evidentiary claims that Lott claims
sufficient to establish by clear and convincing evidence that,    entitles him to bring a second habeas petition.
but for constitutional error, no reasonable factfinder would      Discrepancies in Description
have found the applicant guilty of the underlying offense.”
28 U.S.C. § 2244(b)(2)(B)(ii). This is the test we must apply,       The victim was able to describe his assailant as an African-
rather than the much lower standard that the majority uses:       American man with long hair, a medium build, light skin,
“sufficient to cause the fact finder to reach the conclusion      who wore a light-colored shirt, grayish tennis shoes, and a cap
beyond a reasonable doubt that the petitioner was not guilty      without a bill. When Lott was arrested, he had short hair and
of premeditatedly murdering the victim.” (Maj. Op. at 5).         medium to dark skin tone. Since two weeks had passed
Compare House v. Bell, 311 F.3d 767, 778, n.4 (6th Cir.           between the assault and Lott’s arrest, he had ample
2002) (en banc) (Merritt, J.) (“Scholastic arguments aside,       opportunity to cut his hair; in fact, his hair is so short in the
surely no one would really hold the view that House should        photo taken when he was booked that one could easily
be executed if 99 of 100, or even 50 of 100, jurors would now     conclude that he had very recently visited his barber. The
seriously doubt the persuasiveness of the state's case. In the    police found tennis shoes matching the victim’s description
real world of nonhypothetical juridical minds, only a new trial   in Lott’s car. A sole print at the crime scene is at least
with real jurors will resolve such a problem.”) with House,       consistent with that shoe, although not a confirmed match.
311 F.3d at 783 (Boggs, J., dissenting) (“the Schlup standard     The victim said his assailant was 5' 10"; Lott is 6 feet. I find
‘does not merely require a showing that a reasonable doubt        that a remarkably good guess, given McGrath’s vantage point:
exists in light of the new evidence, but rather that no           tied up on the floor.
reasonable juror would have found the defendant guilty.’”            That leaves only the difference of opinion between the
Schlup, 513 U.S. at 329, 115 S.Ct. 851. . . . [T]he court's       shade of Lott’s skin. The petitioner emphasizes that no make-
opinion expresses the court's belief that House's sentence        up was ever found to support the speculation that Lott
must be overturned if ‘even 50 of 100 ... jurors would now        lightened his skin as part of a disguise. I agree that seems
seriously doubt the persuasiveness of the state's case.’ . . .    unlikely. However, the victim was an 80-year-old man who
However, it is as clear as the English language can make it       was on the floor, under attack, even on fire, when he observed
that this is not the standard stated by Justice Stevens in the    his assailant. Therefore his perception of light skin may have
quotation above.”).                                               been inaccurate. In any case, this remains the only
  Prosecutorial misconduct is a separate issue and cannot be      discrepancy that cannot be readily explained; by no stretch of
used to bolster a weak claim of actual innocence. Such            the imagination could one assert that no reasonable factfinder
misconduct can constitute the prerequisite constitutional         would have convicted, even had that contradiction been in the
violation for a claim for relief under Schlup v. Delo, but the    record.
petitioner cannot rely on that malfeasance to build an               Lott argues in his brief that McGrath was not able to
inference of actual innocence. Schlup v. Delo, 513 U.S. 298,      identify Lott from the composite sketch. Police reports
324 (1995) (explaining that a petitioner asserting actual         indicate that McGrath was not coherent at the time he was
innocence must “support his allegations of constitutional error   shown the sketch, fell asleep in the middle of the interview,
No. 04-3462                                    In re Lott    11    12   In re Lott                                 No. 04-3462

and in fact died a few hours later. It can hardly be said that     grounds on which to consider his case further. I respectfully
the discrepancy is so compelling that no reasonable factfinder     dissent from the grant of permission to file a new habeas
would convict based on all the other trial evidence, not to        petition, and the attendant stay of execution. I also dissent
mention the suppressed confession which must be weighed in         from our apparently limitless stay of execution despite the
assessing an actual innocence claim.                               matter’s being remitted to activity in the district court.
Kerosene Oil
   Lott emphasizes in his petition that the prosecutor lied at                    ENTERED BY ORDER OF THE COURT
his trial when he told the judges that McGrath did not own an
oil lamp and that Lott must have brought the oil used to burn
McGrath with him, showing his intent to murder the victim.                              /s/ Leonard Green
The origin of the oil is immaterial to Lott’s claim of actual                     _____________________________
innocence. Assuming that McGrath owned the oil, it was
available to Lott, who used it in his attack on the victim.                                    Clerk
Were this an argument about prosecutorial misconduct in the
penalty phase of a capital trial, I would see the relevance. In
this context, I cannot draw any inference from the oil that
indicates Lott’s innocence.
   Lott has fallen far short of the requirement of producing
“clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found [him] guilty
of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).
The initially-suppressed evidence, which boils down to a
contradiction over skin tone, and false statement about the
origin of the oil used to burn the victim, also cannot reach the
standard enunciated in Schlup v. Delo: “the habeas petitioner
[must] show that ‘a constitutional violation has probably
resulted in the conviction of one who is actually
innocent.’ . . . To establish the requisite probability, the
petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” Schlup v. Delo 513 U.S. 298, 327 (1995)
(citation omitted). See Herrera v. Collins 506 U.S. 390, 417
(1993) (“[T]he threshold showing for such an assumed right
[not to be executed if actually innocent] would necessarily be
extraordinarily high.”). Lott has not made a prima facie case
of actual innocence nor shown that a constitutional violation
is the cause of his conviction. Therefore, this panel has no
