Kevin KEITH, Movant, v. David BOBBY, Warden, Respondent, 551 F.3d 555

ORDER Kevin Keith moves this court for an order authorizing the district court to consider a second or successive habeas corpus petition under 28 U.S.C. § 2254. Because Keith’s motion does not make a prima facie showing that “no reasonable factfin-der would have found the applicant guilty of the underlying offense,” 28 U.S.C. § 2244(b)(2)(B)(ii), we deny the motion. I Keith was convicted in an Ohio court for a 1994 triple murder and sentenced to death.

The state alleged that Keith had been a local drug dealer indicted in connection with a police raid and had killed two women and a child as retaliation against Rudel Chatman, the man suspected of the cooperation that facilitated the raid. Two victims of the shooting, one child and one adult, survived and both testified at Keith’s trial. Keith was also connected to the crime by another eyewitness and by circumstantial physical evidence regarding a car he was known to drive and spent gun casings.

After exhausting his appeals in the Ohio courts and unsuccessfully moving for post-conviction relief, Keith filed a petition for habeas corpus in federal district court in September 1999, alleging nine grounds for relief. The district court denied relief on all grounds. A certificate of appealability was issued on three questions, each involving the penalty phase. This court affirmed the denial of relief. Keith v. Mitchell, 455 F.3d 662, 665 (6th Cir.2006). Keith filed his current motion on August 25, 2008, asserting that newly discovered evidence reveals violations of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). First, Keith argues that there was exculpatory evidence uncovered during the Pharmacy Board’s investigation of a string of pharmacy robberies that occurred contemporaneously with the murders.

The Board’s files included a statement from Rodney Melton' — -a witness at Keith’s trial — to a confidential informant that Melton “had been paid $ 15,000 to cripple the man who was responsible for the raids in Crestline, Ohio last week.” The files also contained notes from an interview with Melton’s accomplice who corroborated the confidential informant’s report that Melton claimed to have been offered payment to murder Rudel Chat-man.

Second, Keith claims that the nurse (who did not testify at trial) who told the police that a survivor, Richard Warren, identified Keith as the shooter was incorrectly named during police testimony. The detective testified that “Amy Gim-mets” called him about Warren’s statement when in fact no person (at the time or ever) with that name worked at the hospital. Instead, Keith claims that the nurse on duty who called the detective was actually Amy Wishman.

Now that her true identity has been discovered, Wish-man claims in an affidavit that she never heard a name from Warren nor did she tell the detective that she did. Keith alleges that these new facts cast sufficient doubt on his conviction that, if proven, no reasonable juror could have found him guilty of the murders. II A Keith filed his habeas corpus petition in September 1999, after the 1996 effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and therefore the provisions of that Act apply to this case. See Keith, 455 F.3d at 665.

In order to obtain our permission to file a second or successive petition under that statute, a movant must overcome its gate-keeping provisions and make a prima facie showing that his application presents a claim that “relies on a new rule of constitutional law, made retroactive ... by the Supreme Court” or presents facts that “could not have been discovered previously” and tend to show actual innocence. 28 U.S.C. § 2244(b)(2). Because Keith does not make an argument relying on a new rule of law, he must demonstrate that (B)(

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. 28 U.S.C. § 2244(b)(2). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements” of § 2244(b)(2). 28 U.S.C. § 2244(b)(3)(C). “Prima facie in this context means simply sufficient allegations of fact together with some documentation that would warrant a fuller exploration in the district court.” In re Lott, 366 F.3d 431, 433 (6th Cir.2004).

Accordingly, “we do not need to find that” Keith’s claim compels relief as written, but we still must determine whether his allegations “require a district court to engage in additional analysis in order to ascertain whether but for the constitutional error, no reasonable factfinder would have found [him] guilty.” In re McDonald, 514 F.3d 539, 547 (6th Cir.2008). If, “viewed in light of the evidence as a whole,” § 2244(b)(2)(B)(ii), Keith’s motion does not make such a showing, we may not authorize the district court to hear the habeas application. 28 U.S.C. § 2244(b)(3)(C).

B Keith’s two claims of constitutional error — assuming without deciding that the evidence could not have been previously discovered and would, in fact, demonstrate constitutional violations — plainly involve relevant facts, but ones which do not go to the ultimate question of guilt. This showing alone is insufficient to overcome AED-PA’s presumption against repeat federal relitigation of state convictions.

See In re Williams, 330 F.3d 277, 284 (4th Cir.2003) (denying a motion for a successive application because “[e]vidence of pending charges [against a government witness] could be used for impeachment, but that alone does not satisfy Williams’ burden. And, while [a] recantation supports Williams’ assertion of innocence, it does not clearly and convincingly outweigh un-impeached eyewitness testimony....”). Taken at full face value, the evidence that Keith says was not previously discoverable tends to establish two separate propositions. The first is straightforward.

The evidence from the Pharmacy Board shows that Rodney Melton contemporaneously claimed that he had a possible motive to commit the murders. He had told several people that he had agreed to “cripple” Rudel Chatman for his suspected participation in providing information that led to the police raid earlier that month. Thus, this could imply a motive to kill people close to Chatman. Understanding the second proposition requires greater familiarity with the record.

Keith’s evidence shows that the detective testifying to Warren’s initial identification in the hospital gave a garbled version of the name “Amy Wishman” as the person who originally heard Warren mention Kevin Keith as the killer. Because Wishman now denies hearing Keith’s name, Keith’s evidence undermines the credibility of this police testimony and, therefore, its ability to corroborate the in-court eyewitness account provided by Warren himself.

Even taken without reference to the rest of the record, it is a stretch to say that the fact that another person had a motive and that an eyewitness’s original identification may have occurred during a police interview and not independent of it could constitute clear and convincing evidence that no reasonable fact finder could have returned a guilty verdict.

Our other cases, to be sure, have described the prima facie requirement as “lenient,” Lott, 366 F.3d at 433, or “not a difficult showing,” In re Bowling, 422 F.3d 434, 436 (6th Cir.2005), but those cases have involved new evidence that went to the heart of a guilt determination or directly contradicted the government’s case-in-chief. See, e.g., McDonald, 514 F.3d at 547 (key prosecution witness recanted); Lott, 366 F.3d at 433 (prosecutor withheld evidence that victim, prior to dying, identified a person of different skin color than defendant).

Keith’s allegations do not rise to this level and warrant no “additional analysis” to determine whether he meets the statutory requirements. McDonald, 514 F.3d at 547. The difference between those cases and this one is critical to why Keith has not made a sufficient showing. Notwithstanding the dissent’s assertion that the new evidence attacks “the strongest evidence presented against Keith,” it does not contradict any evidence that directly proves guilt.

Melton may have had a motive (and a stated intention to carry it out) and the police witness may have testified incorrectly (and so would not be able to corroborate Warren’s testimony), but those propositions, taken at full value, do not mean that no reasonable fact finder would find Keith guilty. Moreover, when “viewed in light of the evidence as a whole,” § 2244(b)(2)(B)(ii), Keith’s new evidence is particularly lacking.

The core of the case, as recounted by this court, against Keith included: • Eyewitness testimony of the survivor Warren identifying Keith; • A partial imprint of the license plate made from the snowbank where the getaway car crashed matched the license plate of a car he was known to have access to; • Eyewitness identification of him as the man driving the getaway car when it crashed; • A spent bullet cartridge casing matching the ones recovered from the scene of the murders was found where Keith later picked up his girlfriend; and • Testimony that Keith had been indicted as a result of the drug raid precipitated by the victims’ relative.

See Keith, 455 F.3d at 666-68. Keith’s new evidence does not contradict any of this case. Combined with other facts known about Melton at the time of trial — that his car is similar to the getaway car, that his build is similar to the killer’s, that the victim’s seven-year-old daughter identified Melton’s brother as the shooter, and that Melton told Chatman when they met at the hospital after the shootings that the killings were motivated by (unspecified) revenge — Keith argues that the evidence of Melton’s motive casts doubt on the jury verdict.

But Keith had the same revenge motive as Melton and it was he, not Melton, who was identified by two witnesses as being involved in the crime. Indeed, fully crediting all the allegations against Melton at best introduces doubt but it cannot, after any amount of district court analysis, demonstrate by clear and convincing evidence that no reasonable juror could find Keith guilty. Similarly, the attack on the credibility of the identification at best introduces doubt but does not foreclose Keith’s guilt. Cf. Sawyer v.

Whitley, 505 U.S. 333, 349, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (“[T]his sort of latter-day evidence brought to impeach a prosecution witness will seldom, if ever, make a clear and convincing showing that no reasonable juror would have believed the heart of [the witness’s] account of petitioner’s actions.”). And even where a witness’s initial identification is impliedly suspect, as Keith alleges here, our system of adjudication permits subsequent identifications on the strength of the witness’s ability to observe the criminal independent of the circumstances of the first identification. See Neil v.

Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Here, notwithstanding Keith’s evidence, Warren still would have testified to his identification based on his experience as a victim. The dissent emphasizes that this new evidence strengthens the case that Warren was improperly influenced. We agree that this makes Warren’s testimony marginally less credible, but disagree that it is a fatal blow. It attacks only a corroborating witness. Even if the implication of Keith’s evidence is accepted, Warren’s in-court eyewitness testimony still strongly supports Keith’s guilt.

And it bears repeating, neither proposition, if proven by Keith, demonstrates that no reasonable fact finder could find Keith guilty beyond a reasonable doubt. In light of the balance of evidence left uncontro-verted by these propositions — the eyewitness placing him at the scene; the partial match of the license plate; and the matching gun casings — Keith has not made the prima facie showing that permits us, under AEDPA, to authorize a second or successive habeas corpus application. Accordingly, we deny Keith’s motion.