Federal Court Finds Evidence Withheld by Prosecutor Opens Door for Successive Habeas Petition

After the discovery that the prosecution withheld key pieces of evidence that may have exonerated a man convicted and sentenced to death, the U.S. Court of Appeals for the Sixth Circuit held on Sept. 2, 2021, that this was enough to reopen the door for federal habeas corpus, despite the strict bar on second or successive petitions.

Kareem Jackson was convicted of aggravated murder, robbery, kidnapping, and assault, and was sentenced to death. Over a decade later, after all his criminal appeals and numerous attempts at post-conviction relief had failed, Jackson discovered the prosecution had withheld key evidence which he said would have cast enough doubt in his case that he would not have been convicted. Specifically, Jackson claimed that the police suppressed evidence that a key witness had described a different person who didn`t match Jackson`s description, and that law enforcement had intimidated and coerced another witness to testify that Jackson had confessed to the murder.

Jackson filed another habeas petition, under 28 U.S.C. sec 2254, in the federal district court with these claims, but the court transferred his petition to the Sixth Circuit as a “second or successive” petition that required the court of appeals` approval before the district court could hear it. This brought up two issues in the Sixth Circuit: (1) whether Jackson`s petition filed in the district court relying on new evidence was in fact successive, and (2) if so, whether he met the strict standard for authorization to file a successive petition.

Jackson`s Petition was Properly Transferred to the Court of Appeals

If Jackson`s petition was not truly a successive petition, then his motion to remand the petition to the district court could have been granted to allow that court to hear his claims without approval from the Sixth Circuit. This would have been the easiest resolution and one that Jackson pushed for, but the court rejected this idea.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecution must turn over all favorable evidence to the defense, even if the defense doesn`t ask for it. Not doing so, the Court said, amounts to a violation of the Due Process Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. It would seem that a Brady violation would be sufficient to allow a new challenge to a conviction, no matter how long ago it occurred. And that was the case — until the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

The AEDPA created many obstacles to federal habeas relief for prisoners. One of those obstacles was the near-absolute bar on “second or successive” petitions. But there is a narrow exception to this bar for newly discovered evidence: New evidence that would lead to actual innocence. Under 28 U.S.C. sec 2244(b)(2)(B), a federal court cannot hear a successive habeas claim based on newly discovered facts, unless:

(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.

Jackson`s argument was that because his claim wasn`t “ripe” until he discovered that the prosecution withheld evidence, it was not a “successive” claim barred by the AEDPA. He cited Panetti v. Quarterman, 551 U.S. 930 (2007), where the Supreme Court held that a claim about incompetency that would prevent execution didn`t become “ripe” until execution was imminent, many years after a conviction, and so wasn`t barred by the AEDPA.

However, the Sixth Circuit held in In re Wogenstahl, 902 F.3d 621 (6th Cir. 2018), that a Brady violation was not an exception to AEDPA`s bar on successive habeas petitions, and such petitions had to meet the high bar under sec 2244(b)(2)(B). Citing this case, the Court found that Jackson`s Brady claims were successive and denied his motion for a remand.

Jackson Met the Strict AEDPA Criteria to File a Successive Petition

While Jackson`s claims were barred by the AEDPA`s prohibition on successive habeas petitions, the Court concluded that he had met the strict criteria for the exception to that bar.

As to the evidence that the key witness identified a suspect who did not meet Jackson`s description, the Court found that this exculpatory evidence was first disclosed by the state in recent clemency-related public records. This was the fist time Jackson knew of the evidence. And the coerced-witness evidence was also found by the Court to be suppressed and could not have been discovered earlier. Therefore, Jackson made a prima facie showing that he could not have discovered the “factual predicate” for his claim earlier to meet sec 2244(b)(2)(B)(i)`s criterion.

As to the second criterion, the court found Jackson proved that had the evidence been disclosed he would have been acquitted. In order to prove a Brady violation, “[1] the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching, [2] that evidence must have been suppressed by the state, either willfully or inadvertently, and [3] prejudice must have ensued.” Banks v. Dretke, 540 U.S. 668 (2004).

Jackson proved the first two prongs, but he also had to show that, “but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense,” in order to meet the “prejudice” prong. In evaluating a Brady claim, “a court must consider the materiality of withheld evidence only by evaluating the evidence collectively, not item by item,” the Court has held. This includes all the evidence, and not just the evidence withheld.

The Court considered all of the evidence, even a witness`s statement who did not testify that matched the first witness`s description of someone other than Jackson as the shooter. With all the evidence combined, the Court held that Jackson at least made a prima facie showing that his claims also met the second part of the AEDPA`s exception to the successive petition bar.

The Court therefore granted Jackson authorization to file his proposed habeas petition in the district court. See: In re Jackson, 12 F.4th 604 (6th Cir. 2021).

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