In re Coley, Nos. 17-3071/3815 (Siler, Sutton) (Per Curiam) (Merritt, dissenting).

In re Coley, Nos. 17-3071/3815 (Siler, Sutton) (Per Curiam) (Merritt, dissenting).

The petitioner is on death row in Ohio, and filed a second habeas petition under 28 U.S.C. § 2254, arguing that Hurst v. Florida, 136 S. Ct. 616 (2016), announced a new rule of constitutional law requiring juries to make specific findings about mitigating evidence during capital sentencing. He argued that in light of Hurst, Ohio’s capital-sentencing scheme is unconstitutional. The district court transferred the petition to the Sixth Circuit for permission to be filed.

The Sixth Circuit held that the Supreme Court did not make Hurst retroactive to cases on collateral review, and therefore the petitioner could not base a second or successive petition on that case, even if it did announce a new rule of constitutional law. The majority rejected the petitioner’s argument that a petition is not “second or successive” when it relies on a rule that did not exist when the petitioner filed the first petition, reasoning that to allow second petitions in that situation would negate § 2244(b)(2)(A), which addresses bringing a claim relying on new rules of constitutional law.

Judge Merritt dissented, arguing that the petitioner met the requirements of § 2244(b)(2)(B) because Hurst’s holding created a “factual predicate . . . [that] could not have been discovered previously through the exercise of due diligence.” While the opinion is a bit unclear, it seems that Judge Merritt reasoned that the fact that the judge made the final decision in the petitioner’s case only became relevant and material after Hurst because the Supreme Court had to overrule prior precedents which had allowed judges to make the final decision. Therefore, no amount of due diligence would have revealed the factual predicate (that the judge made the decision, not the jury) of the petitioner’s second motion because the Supreme Court had not made that fact material until Hurst.