Thursday, September 14, 2017

The Post-Hurst Hydra Loses a Head

In Hurst v. Florida, the Supreme Court held that Florida’s death-penalty sentencing scheme unconstitutionally authorized judges to find facts necessary to impose a death sentence.  Under Florida’s unconstitutional system, juries recommended a life or death sentence, and then judges held a separate hearing to find mitigating and aggravating factors.  Judges then imposed a sentence after consideration of those factual findings and the jury’s recommendation.  In the immediate aftermath of Hurst, Professor Douglas Berman predicted there “will likely be multi-headed, snake-like litigation that will grow and grow again” in Florida, federal, and other state courts.  He coined the term “post-Hurst hydra” to describe that multi-headed litigation beast.  The Sixth Circuit was one of those courts that had to contend with the post-Hurst hydra.  In re Coley decapitates one of the post-Hurst hydra’s heads.

In Ohio, in 1998, Douglas Coley was condemned to die after a jury trial. He challenged the conviction and death sentence in state and federal courts until exhausting his available remedies in 2013. Approximately three years later, in January 2016, the Supreme Court decided Hurst.  In Mr. Coley’s case, his Ohio jury gave a general verdict.  This sentencing scheme potentially violates the Sixth Amendment because a jury never found the aggravating and mitigating facts beyond a reasonable doubt.

Even though he had exhausted his federal remedies, Mr. Coley relied on Hurst to file a petition for permission to file a second or successive (“SOS” for short) petition for a writ of habeas corpus.  Unfortunately, that meant he had to satisfy the narrow dictates of 28 U.S.C. § 2244(B)(2).  To do so, he needs to show either (1) that his “claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and if those facts are proven by clear and convincing evidence, then “no reasonable factfinder would have found the applicant guilty.”  Id. (b)(2)(A)–(B).  In Mr. Coley’s case, he argued that, had he been able to uncover and prove the fact that Ohio’s death sentencing transferred power from jury to judge, then no reasonable factfinder would have sentenced him to death.

But the Sixth Circuit held that Mr. Coley could not satisfy either standard because the Supreme Court has not explicitly made Hurst retroactive.  It also held that Mr. Coley cannot satisfy the second prong because Hurst’s holding cannot be a newly discovered fact for purposes of § 2244(b)(2)(B). To treat a new Supreme Court decision as a new factual predicate, the court reasoned, would undermine the whole point of § 2244(b)(2)(A).

Judge Merritt disagreed on this last point.  He believed that Hurst overruled decades of prior precedent, and therefore no attorney or defendant would have investigated the facts underlying the claim.  He would send out an SOS to Mr. Coley based on this preliminary showing of a new factual predicate.

SOS applicants from Ohio hoping to rely on Hurst are out of luck.  And Mr. Coley is still condemned to die. 

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