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Date: 09-25-2021

Case Style:


Case Number: 19-3881

Judge: Before: SILER, MOORE, and CLAY, Circuit Judges.


Plaintiff's Attorney: Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL

Defendant's Attorney:

Cincinnati, Ohio - Criminal defense Lawyer Directory


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.
No. 19-3881 In re Hanna Page 5
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
No. 19-3881 In re Hanna Page 6
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
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
No. 19-3881 In re Hanna Page 7
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)

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

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