IN RE: JAMES HANNA

Cincinnati, Ohio - Criminal defense lawyer represented defendant with direct appeal and state postconviction remedies for a death sentence.

Hanna was convicted of aggravated murder and sentenced to death. He exhausted directappeal and state postconviction remedies, then filed a federal habeas corpus petition, which the

district court denied and dismissed with prejudice. Hanna v. Ishee, No. C-1:03-cv-801, 2009

WL 485487 (S.D. Ohio Feb. 26, 2009), aff'd, 694 F.3d 596 (6th Cir. 2012), cert. denied sub nom.

Hanna v. Robinson, 571 U.S. 844 (2013). We specifically rejected Hanna's claim that he was

deprived of effective assistance in mitigation because his counsel failed to present a psychologist

to testify as to how organic neurological defects and a troubled childhood, in combination with

lifelong incarceration, contributed to the aggravated murder.

Hanna returned to the district court on August 5, 2019 and filed the federal habeas corpus

petition now before us. It raises four claims, all alleging that counsel ineffectively assisted

Hanna in the penalty phase: (A) counsel failed to present neuroimaging evidence; (B) counsel

failed to present mitigating evidence that Hanna suffered from severe mental illnesses at the time

of the offense (post-traumatic stress disorder, major depression, and borderline personality

disorder) caused by severe sexual abuse and complex trauma; (C) counsel failed to present

mitigating evidence that Hanna has, and had at the time of the offense, a serious mental disorder

caused by brain damage; and (D) counsel's errors, combined, deprived Hanna of effective

assistance in the penalty phase and of a fair and reliable sentencing hearing. The magistrate

judge concluded that the petition was a successive petition, which may not be filed without this

Court's permission. 28 U.S.C. § 2244(b)(3)(A). He ordered the case transferred here for that

permission. Hanna appealed, and the district judge overruled Hanna's objections, adopted the

magistrate judge's transfer order, and transferred the case. Once here, Hanna filed the two

motions aforementioned: the § 2244 motion seeking leave to file a successive petition and the

motion to remand the case.

Hanna argues, and the dissent agrees, that § 2244, which governs the finality of federal

habeas proceedings, does not apply in this case. Hanna concedes that his proposed petition is the

second federal habeas corpus petition he has filed and, thus, second in time, but he argues that it

is not "second or successive” in the § 2244 sense. Citing In re Bowen, 436 F.3d 699, 704 (6th

Cir. 2006), he argues that "a second-in-time petition is a 'second or successive' petition only if it

constitutes an 'abuse of the writ.'” He contends that his petition does not abuse the writ.

No. 19-3881 In re Hanna Page 3

According to him, his new claims could not have been raised in his first petition because his

previous federal habeas counsel suffered a conflict of interest that prevented their raising the

claims—hence § 2244 does not apply, he needs no permission to file, and his proposed petition

should be remanded to the district court for treatment as a first petition.

As an initial matter, the abuse-of-the-writ doctrine is no help to Hanna because he raises

claims that were presented in the prior petition. The abuse-of-the-writ doctrine "concentrate[s]

on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim

at the appropriate time.” McCleskey v. Zant, 499 U.S. 467, 490 (1991). It is not applicable here

because Hanna's claims of ineffective assistance in mitigation relating to his brain damage and

history of abuse were raised in the previous petition.

Moreover, the abuse-of-the-writ doctrine is applied in light of the Antiterrorism and

Effective Death Penalty Act ("AEDPA”), 28 U.S.C. § 2241 et seq., the relevant statute.

"AEDPA modifies those abuse-of-the-writ principles and creates new statutory rules under

§ 2244(b).” Magwood v. Patterson, 561 U.S. 320, 337 (2010). If the petitioner's claims fall

within a scenario addressed by § 2244, the petition is successive and must satisfy § 2244(b). See

In re Wogenstahl, 902 F.3d 621, 627–28 (6th Cir. 2018) (per curiam).

The current petition is a successive petition and must be dismissed. "A claim presented

in a second or successive habeas corpus application under section 2254 that was presented in a

prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). This Court previously rejected

Hanna's claims that his counsel were ineffective for failing to present certain experts, including a

psychologist, who specifically "could have testified that the stresses of lifelong incarceration,

compounded with his organic neurological defects and troubled childhood, directly contributed

to the attack.” Hanna, 694 F.3d at 617. Accordingly, Hanna "seeks to present claims that have

already been adjudicated in a previous petition,” and "AEDPA denies federal courts the

jurisdiction to adjudicate such a petition” under § 2244(b)(1). Post v. Bradshaw, 422 F.3d 419,

425 (6th Cir. 2005).

The dissent concludes that Hanna's current claims are new because brain damage and

Hanna's history of sexual abuse were not the focus of his first § 2254 petition or properly

No. 19-3881 In re Hanna Page 4

presented in the context of his mental illnesses. That Hanna "seeks to supplement with new

evidence his claims” that counsel were ineffective at the penalty phase of trial for failing to

properly present evidence of his organic brain damage and sexual abuse "would be representing

already presented claims.” Moreland v. Robinson, 813 F.3d 315, 325 (6th Cir. 2016) (citing

Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)). The dissent's reference to Wogenstahl, where

the petitioner sought to bring a completely new Brady claim, is therefore distinguishable. See In

re West, 402 F. App'x 77, 79 (6th Cir. 2010) (holding that claim that counsel was ineffective "for

failing to present additional pieces of evidence that—like the evidence we already considered—

painted [the petitioner] as a troubled individual” was not new). Hanna's petition must be

dismissed under § 2244(b)(1).

Hanna has also not shown that he meets the requirements for consideration of a second or

successive petition under § 2244(b)(2). Hanna does not claim that his new petition relies on a

new rule of constitutional law under § 2244(b)(2)(A), but it allegedly depends on a factual

predicate—the scenario addressed by § 2244(b)(2)(B). The dissent's contention that Hanna's

petition is not based on a new factual predicate is belied by the petition itself, which seeks "an

evidentiary hearing to enable James Hanna to prove the facts asserted in this petition and to

prove any and all facts required . . . to prove his entitlement to relief on the merits . . . .”

Assuming that the "factual predicate” of Hanna's current petition supports new claims and could

not have been discovered previously, which is far from clear, all the claims at issue relate to trial

counsel's representation in mitigation. 28 U.S.C. § 2244(b)(2)(B)(i). Mitigation evidence

categorically does not meet § 2244(b)(2)(B)(ii)'s requirement that the new facts establish a

petitioner's actual innocence.1

Even if Hanna had not previously raised these claims under § 2244(b)(1), and they were

not squarely foreclosed by § 2244(b)(2), he has not shown that the abuse-of-the-writ doctrine

applies. "[T]his not-second-or-successive exception is generally restricted to two scenarios,”

1The dissent argues that because the factual predicate of Hanna's claim is not new and the facts underlying

his claim do not concern his guilt, this petition is outside the scenario contemplated by § 2244(b)(2)(B). However,

this analysis rests upon an unduly limited view of § 2244(b)(2)(B), which requires all second or successive petitions

based on a factual predicate to be founded on newly discovered facts and go to establishing a petitioner's actual

innocence. See In re Caldwell, 917 F.3d 891, 894 (6th Cir. 2019). That Hanna's claims fail to meet either of these

requirements does not justify bypassing the statute.

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neither of which is present here. In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (per curiam).

Those scenarios are when (1) the claim was not ripe when the earlier petition was filed and (2)

where the earlier petition was dismissed for failure to exhaust. Id. The habeas statute's limits on

second or successive habeas petitions also do not apply to challenges to intervening judgments.

Magwood, 561 U.S. at 323–24. There is no intervening judgment in this case.

Instead, Hanna argues that his petition is not an abuse of the writ because counsel from

the same office, the Ohio Public Defender, represented him in both his state postconviction

proceedings and initial federal habeas case. He asserts that this continuity of counsel constituted

a conflict of interest which prevented him from previously raising the instant claims because it

would have required members of the Ohio Public Defender to argue that they and their

colleagues had been ineffective in a prior proceeding. Neither Hanna nor the dissent cite any

case where we have found that mere continuity of counsel constitutes a conflict of interest

entitling a petitioner to file a second or successive petition under the abuse-of-the-writ doctrine.

We also note that the conflict Hanna has attributed to the Ohio Public Defender due to

continued representation "is merely hypothetical . . . .” Moss v. United States, 323 F.3d 445, 464

(6th Cir. 2003). There is no evidence that "a conflict of interest actually affected the adequacy of

his representation . . . .” Cuyler v. Sullivan, 446 U.S. 335, 349 (1980). Hanna has not presented

any specific instances where the continuity of counsel "adversely affected his lawyer's

performance,” but rather merely suggests "the possibility of conflict . . . .” Id. at 350. Hanna has

also failed to show that he was prejudiced by counsel's failure to raise the claims presented in the

new petition. See Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 844 (6th Cir.

2017) (recognizing that prejudice is presumed only in cases where actual conflict of interest was

attributable to multiple concurrent representation).

Additionally, Hanna's filings fail to acknowledge that his claim that members of the Ohio

Public Defender suffered from a conflict of interest was presented to and rejected by the district

court in his initial habeas case. After certiorari had been denied in that suit and the Supreme

Court decided Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013),

which held that ineffective assistance of state postconviction counsel can excuse procedural

default when a petitioner cannot raise claims of ineffective assistance of trial counsel on direct

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appeal, Hanna sought to have new counsel appointed. He raised the same arguments that he does

here—that his attorneys from the Ohio Public Defender were conflicted because they would not

be willing to criticize their colleagues who had represented him in the state postconviction

proceedings. The district court considered and rejected this argument twice, finding that

members of that office would be perfectly capable of reviewing the prior work of their

colleagues for mistakes and that there was no actual conflict of interest. See Gillard v. Mitchell,

445 F.3d 883, 891–92 (6th Cir. 2006) (rejecting habeas claim when trial court "fully inquired

into the possible conflict of interest . . . , and the Ohio Supreme Court recognized only the

possibility of a conflict of interest”). In failing to acknowledge this prior determination, Hanna

provides us no basis to conclude that it was made in error. See United States v. Kilpatrick, 798

F.3d 365, 377 (6th Cir. 2015).

Hanna's new petition explicitly recognizes that his previous counsel were bound by Ohio

Rule of Professional Conduct 1.7 to consider whether their continued representation would have

created "a substantial risk that [their] ability to consider, recommend, or carry out an appropriate

course of action . . . will be materially limited by . . . [their] own personal interests.” Prior to the

denial of certiorari in his own case and the Supreme Court's decisions in Martinez and Trevino,

there is no indication that counsel from the Ohio Public Defender harbored any concern that their

representation of Hanna was compromised by personal interest. See Mickens v. Taylor, 535 U.S.

162, 168 (2002) (objection to conflicted representation must be timely). Hanna's claim that he

was not aware of the potential conflict until after the conclusion of the first habeas case is also

unavailing. In fact, as the new petition recognizes, continuity was cited by Hanna as a reason in

favor of appointing counsel in the initial federal suit. See McFarland v. Yukins, 356 F.3d 688,

701 (6th Cir. 2004) (observing that while a defendant has an interest in conflict-free counsel, as

well as "to proceed with counsel of [his] own choice,” he "cannot have it both ways by asking

for reversal or habeas corpus on the basis of representation that he or she acceded to during

trial”).

Moreover, even if the current petition was not an abuse of the writ, a federal habeas court

could not consider Hanna's claims because they are procedurally defaulted or have been

adjudicated in an unchallenged state court decision. Both Hanna and the dissent rely on the

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Supreme Court's decisions Martinez and Trevino. However, even now, Hanna, with new

counsel, does not offer a cognizable argument that his state postconviction counsel were

ineffective since it is well-established that simply not raising a particular argument does not

constitute ineffective assistance. See Hand v. Houk, 871 F.3d 390, 410 (6th Cir. 2017) ("Mere

failure to raise a potentially viable claim is not enough, as [a]ppellate counsel need not raise

every non-frivolous claim on direct appeal.” (alteration in original) (internal quotation marks and

citation omitted)). Additionally, the application of Martinez or Trevino is squarely foreclosed in

this case because Hanna "brought a claim of ineffective assistance of trial counsel [at sentencing]

on direct appeal, and the Ohio Supreme Court adjudicated that claim on the merits.” Moore v.

Mitchell, 848 F.3d 774, 775 (6th Cir. 2017). In particular, as the new petition recognizes, Hanna

argued on direct appeal that trial counsel failed to adequately present evidence of child abuse.

State v. Hanna, 767 N.E.2d 678, 702–03 (Ohio 2002). His claim was rejected, and his sentence

affirmed. The record reviewed by the Ohio Supreme Court contained evidence of sexual abuse

and, as the petition also acknowledges, "[n]europhysical testing [that] showed . . . frontal lobe

impairment in the brain, and dysfunction in the right posterior aspect of his brain.” Id. at 705.

Hanna presents no claims of error sufficient to entitle him to relief under § 2254(d).

Hanna also argues that not treating his second-in-time petition as a first petition would

violate his rights to due process and equal protection, suspend the writ of habeas corpus, and

violate 18 U.S.C. § 3599. He does not adequately develop these arguments, however, thereby

forfeiting them. See United States v. Layne, 192 F.3d 556, 566–67 (6th Cir. 1999)

We DENY Hanna’s motion to remand and DENY him permission to file the proposed

petition