In re: Gregory Lott

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0120P (6th Cir.)
File Name: 04a0120p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: GREGORY LOTT,
Movant.
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No. 04-3462
Filed: April 22, 2004
Before: BOGGS, Chief Judge; MERRITT and COLE,
Circuit Judges.
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ORDER AUTHORIZING THE DISTRICT COURT
TO CONSIDER SECOND APPLICATION FOR A
BRADY, ACTUAL INNOCENCE, GATEWAY
CLAIM
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The petitioner, Lott, scheduled to be executed April 27,
2004, in Ohio, has applied for an Order under 28 U.S.C.
§ 2244(b) (pertaining to “second or successive habeas corpus”
petitions), directing the district court to consider his actual
innocence claim based on evidence withheld in violation of
Brady v. Maryland, 373 U.S. 83 (1963). He has made the
requisite “prima facie showing” under 28 U.S.C.
§ 2244(b)(3)(C). The application is granted and the execution
2 In re Lott No. 04-3462
stayed pending adjudication of the claim in the district court.
The district court is authorized to consider the application.
The Brady claim (not tied to the actual innocence aspect of
the claim) was presented in Lott’s first federal habeas
petition, but we ruled that the claim was procedurally barred
and did not reach the constitutional merits of the claim. Lott
v. Coyle, 261 F.3d 594, 619 (6th Cir. 2001) (“Lott never
raised in state court the specific objection he raises today, and
thus we are foreclosed from reviewing it”). We interpreted
Ohio state law to create an adequate and independent state
ground precluding the federal court from reaching the claim.
Id. at 617-19. As to the “actual innocence” or “miscarriage of
justice” aspect of the claim, we concluded that “since the
issue may now be pending in state court and has not been
fully briefed before us, we reach no final conclusion....” Id.
at 619. Thus, no federal court has decided the constitutional
merits of the petitioner’s Brady claim or his actual innocence
claim.
After our opinion, the Ohio courts did in fact reach the
Brady claim on the merits based on a second petition for post-
conviction relief filed in state court. State v. Lott, Nos.
79790, 79791, 79792, 2002 WL 1255579 (Ohio Ct. App. May
30, 2002). The state court fully adjudicated the constitutional
merits of the Brady claim, discussing at length the facts on the
merits and deciding the merits against the petitioner.
Thus, this current application for a second federal petition
is, if granted, the first time in a federal court that the “factual
predicate” for the constitutional claim would be recognized
and adjudicated. Although the “factual predicate” for the
claim was discovered prior to the adoption of AEDPA, when
new stringent requirements were first imposed in death cases,
this is the first time since the adoption of AEDPA that a
federal court could consider the merits of the constitutional
claim. It is not the fault of Lott or his counsel that this is the
first time since AEDPA’s adoption that a federal court could
consider the claim on the merits. This means, we believe, that

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No. 04-3462 In re Lott 3
the second petition should be authorized if the petitioner in
his application makes simply a “prima facie showing” that the
facts underlying the claim “if proven and viewed in the light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional
error, no reasonable fact finder would have found the
applicant guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B)(ii).
A “prima facie showing,” as Judge Posner pointed out for
the Seventh Circuit, is not a difficult standard to meet:
By “prima facie showing” we understand (without
guidance in the statutory language or history or case law)
simply a sufficient showing of possible merit to warrant
a fuller exploration by the district court. All that we
usually have before us in ruling on such an application,
which we must do under a tight deadline (see 28 U.S.C.
§ 2244(b)(3)(D)), is the application itself and documents
required to be attached to it, consisting of the previous
motions and opinions in the case.
Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997).
“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.”
Those allegations of fact, together with documentation, are
clearly presented in the application before us. Judge Posner’s
“tight deadline” point is further reinforced by subsection
(b)(3)(E), which states that “the grant or denial of an
authorization by a court of appeals to file a second or
successive application shall not be appealable and shall not be
the subject of a petition for rehearing or for a writ of
certiorari.” Congress has emphasized the need for quick
action by the court without further review.
We conclude that this lenient prima facie standard is met
and that the matter should be adjudicated. Lott has made a
prima facie showing through documents that the prosecutor
4 In re Lott No. 04-3462
1Part of the prima facie case offered on this point is found on page 1
of Lott’s application, as follows:
Mr. Lott’s trial prosecutor, Ca rmen M arino, has a shameful track
record of breaking rules to win conviction s. See State v.
Liberatore, 69 Ohio St. 2d 583 , 589-90 (1982) (“the
prosecutorial blunders in this case are too extensive to be
excused.”); State v. Owensby, 198 5 Ohio App. L EX IS 73 51, *3
(1985) (“prosecuto r’s com ments clearly outside the bounds of
mere ‘earnestness and vigo r[.]’”); State v. Heinish, 198 8 Ohio
App. LEX IS 3644, *20 (19 88) (“Clearly the prosecutor
imprope rly commented on exclud ed ev idence.”); State v. Ha rris,
1990 Ohio App . LEXIS 5451 (1990) (prosecutorial misconduct
found , but harmless); State v. Hedrick, 1990 O hio App. LEX IS
5647 (1990) (prosecutorial misconduct by making improper
of Lott’s case fraudulently failed to disclose at trial that the
murder victim, before dying, identified a person with a
different skin color from Lott as his assailant. The petitioner
Lott has also made a prima facie showing that the victim
identified his assailant as someone whom he had seen at his
local barber shop and that the prosecutor at trial fraudulently
refused to reveal this fact as well. In addition, the petitioner
Lott has made a prima facie showing that the prosecutor at
trial falsely stated to the court that the instrumentality that
caused the victim’s death — namely, kerosene lamp fluid —
was not present in the victim’s house and had to be brought
into the house for the purpose of killing the victim by the
petitioner Lott. The petitioner Lott has made a prima facie
showing that the victim had a kerosene gas lamp in his home
which he used, a lamp that would have used the type of
kerosene lamp fluid which caused the victim’s death. Lott
has made a prima facie showing that the prosecutor made
statements to the court at trial directly contrary to these facts
which he knew to be true in order to use the lamp fluid to
prove premeditation, an element required in order for the
prosecutor to secure the death penalty. Through the citation
and quotation of many Ohio opinions, Lott has also made a
prima facie showing that the prosecutor has been guilty of
similar misconduct in more than ten other cases.1

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No. 04-3462 In re Lott 5
com ments on matters outside of record and on defendant’s
failure to testify.); State v. Durr, 58 Ohio St. 3d 86 (1991)
(improper comments on the appellant’s unsworn statement, the
app ellant’s prior convictions, and mitigating factors held
harmless.); State v. Keenan, 66 Ohio St. 3d 402 (1993)
(presenting an “aggravated example” of prosecutorial
misconduct); State v. D’Am brosio, 67 Ohio St. 3d 185 (1993)
(prosecutorial misconduct found, but either waived or harmless);
State v. Johnson, 1992 Ohio App. LEXIS 4256, *17 (1993)
(prosecuto rial misconduct “[rose] to the level of being
constitutional errors.”); State v. Matthews, 1999 Ohio App.
LEX IS 896 , *5 (19 99) (prosecuto r denied making a deal with
witnesses, however, “[t]here is ample evidence to suggest that
[the witness] at least did in fact receive just what the assistant
county prosecutor said he would not give him.”); State v. Larkins
(Nov. 6 2003), Cuyahoga App. No. 82325, unreported
(affirming grant of new trial upon finding that Marino withheld
eyewitness descriptions not matching Larkin; hid a deal he
struck to obtain the testimony of the only claimed eyewitness;
then stood silent as she lied about the deal and her criminal
record during trial).
Taking the evidence as a whole, we conclude that
petitioner’s application makes a prima facie showing of
constitutional Brady error that, if proved in the district court,
may be sufficient to cause the fact finder to reach the
conclusion beyond a reasonable doubt that the petitioner was
not guilty of premeditatedly murdering the victim.
Obviously, the egregious prosecutorial misconduct alleged
here, if proved, must be deterred. So long as we value the
rule of law, such conduct, if it occurred, cannot be tolerated
in any kind of case — much less in death penalty cases.
Accordingly, the application for an Order authorizing the
district court to proceed with his application is hereby granted
and the execution of Lott is hereby stayed pending
adjudication in the district court.
6 In re Lott No. 04-3462
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DISSENT
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BOGGS, Chief Judge, dissenting. After a thorough review
of the record, I can discern no legal basis upon which we
could, much less should, grant Lott’s request for
consideration of a second habeas petition. Therefore, I
respectfully dissent.
Lott appealed to this court the denial of his first petition for
habeas relief, and this panel affirmed. Lott v. Coyle, 261 F.3d
594 (6th Cir. 2001). Any disposition of a habeas petition on
the merits, including dismissing on the grounds of procedural
default, means that a defendant has exhausted his unrestricted
right to petition for habeas relief. In re Cook, 215 F.3d 606,
608 (6th Cir. 2000); Harvey v. Horan, 278 F.3d 370, 379 -80
(4th Cir. 2002) (citing cases from the Second, Fifth, and
Tenth Circuits). The requirements for a successive habeas
petition are strict and Lott cannot meet them.
The Antiterrorism and Effective Death Penalty Act
(AEDPA) governs any subsequent petition for habeas relief;
the relevant part of the statute states:
(b)(1) A claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless—
(A) the applicant shows that the 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

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No. 04-3462 In re Lott 7
(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)(1)-(2).
Lott briefed his Brady and actual innocence claims in his
first appeal of the habeas denial to this court. Appellant Br.,
Lott v. Coyle, No. 99-4155, at 32 (Brady), 44 (actual
innocence). Therefore, under 28 U.S.C. § 2244(b)(1), he
cannot present them again. I question the assertion in the
order that this current petition is “the first time in a federal
court that the ‘factual predicate’ for the constitutional claim
would be recognized and adjudicated.” (Maj. Op. at 2). It is
worth clarifying that the “factual predicate” for actual
innocence is exactly the same as the Brady claim: primarily
the victim’s description of his assailant. This issue was
briefed in the original case; this panel considered the variance
in description in its original opinion. Lott, 261 F.3d at 618.
The extent to which we “could” consider Lott’s constitutional
claims has not changed between his two petitions. We could
consider his Brady claim in our earlier adjudication, did so,
and found it procedurally defaulted.
We also could consider his actual innocence claim in 2001,
did so, and expounded upon it at length in dicta. We
ultimately decided that we could not reach an adequate
conclusion because of insufficient evidence in the record
about a confession that Lott had made, which was suppressed
because of a Miranda violation. Id. at 620-21. We simply
declined to decide whether Lott’s confession would preclude
an actual innocence claim; we did not conclude that the claim
itself was beyond our purview. Id. at 621 (“Since this issue
may now be pending in state court and has not been fully
briefed before us, we reach no final conclusion regarding the
8 In re Lott No. 04-3462
effect of the confession.”) (emphasis added). Nothing in the
case law or statute suggests that our opinion was insufficient
to constitute adjudication of Lott’s first habeas petition and
therefore relieve him of the burdens that AEDPA imposes.
If we truly did “not reach the constitutional merits” of
Lott’s actual innocence claim, the court’s theory creates a
clear mechanism for an end-run around the high bar of
§ 2244. This order, resting as it does on our procedural,
rather than factual basis for a part of our ruling in Lott’s first
appeal, means that a panel can give a capital defendant
exactly what AEDPA prohibits – two bites at the apple
without actually having to meet AEDPA’s standards for a
successive petition, simply by failing to rule on the factual
merits of some claim.
For instance, the majority never really says that Lott met
the due diligence standard of § 2244(b)(2)(B)(i), it just slides
around it by saying that this petition would be “the first time
in a federal court that the ‘factual predicate’ for the
constitutional claim would be recognized and adjudicated,”
though the majority immediately thereafter concedes that the
evidence was discovered long ago. (Maj. Op. at 2).
Lott has made no showing of a new rule of constitutional
law, and therefore 28 U.S.C. § 2244(b)(2)(A) is not an avenue
of relief that is open to him.
Although Lott argues that his actual innocence claim is
predicated on evidence that the prosecution withheld and was
not available to the three-judge panel that convicted and
sentenced him, the evidence came to light in 1991. Lott has
had procedural difficulties getting the evidence before the
courts, because his initial appellate lawyer chose not to
introduce it. However, the standard here is evidence that
“could not” have been discovered with due diligence. Not
only could the evidence here have been discovered, it was.
Clause (b)(2)(B)(i) is not satisfied.
In sum, we are presented with a petition for successive
habeas that does not meet the criteria of the statute governing

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No. 04-3462 In re Lott 9
consideration of such claims. We have no legal basis on
which to grant it.
Even if I could be persuaded to ignore the statute, I can see
no interpretation of the evidence in question that 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)(B)(ii). This is the test we must apply,
rather than the much lower standard that the majority uses:
“sufficient to cause the fact finder to reach the conclusion
beyond a reasonable doubt that the petitioner was not guilty
of premeditatedly murdering the victim.” (Maj. Op. at 5).
Compare House v. Bell, 311 F.3d 767, 778, n.4 (6th Cir.
2002) (en banc) (Merritt, J.) (“Scholastic arguments aside,
surely no one would really hold the view that House should
be executed if 99 of 100, or even 50 of 100, jurors would now
seriously doubt the persuasiveness of the state's case. In the
real world of nonhypothetical juridical minds, only a new trial
with real jurors will resolve such a problem.”) with House,
311 F.3d at 783 (Boggs, J., dissenting) (“the Schlup standard
‘does not merely require a showing that a reasonable doubt
exists in light of the new evidence, but rather that no
reasonable juror would have found the defendant guilty.’”
Schlup, 513 U.S. at 329, 115 S.Ct. 851. . . . [T]he court's
opinion expresses the court's belief that House's sentence
must be overturned if ‘even 50 of 100 ... jurors would now
seriously doubt the persuasiveness of the state's case.’ . . .
However, it is as clear as the English language can make it
that this is not the standard stated by Justice Stevens in the
quotation above.”).
Prosecutorial misconduct is a separate issue and cannot be
used to bolster a weak claim of actual innocence. Such
misconduct can constitute the prerequisite constitutional
violation for a claim for relief under Schlup v. Delo, but the
petitioner cannot rely on that malfeasance to build an
inference of actual innocence. Schlup v. Delo, 513 U.S. 298,
324 (1995) (explaining that a petitioner asserting actual
innocence must “support his allegations of constitutional error
10 In re Lott No. 04-3462
with new reliable evidence”). No matter how strenuous the
rhetoric of condemnation of the prosecutor here, it is no
substitute for compliance with AEDPA.
I will address briefly the evidentiary claims that Lott claims
entitles him to bring a second habeas petition.
Discrepancies in Description
The victim was able to describe his assailant as an African-
American man with long hair, a medium build, light skin,
who wore a light-colored shirt, grayish tennis shoes, and a cap
without a bill. When Lott was arrested, he had short hair and
medium to dark skin tone. Since two weeks had passed
between the assault and Lott’s arrest, he had ample
opportunity to cut his hair; in fact, his hair is so short in the
photo taken when he was booked that one could easily
conclude that he had very recently visited his barber. The
police found tennis shoes matching the victim’s description
in Lott’s car. A sole print at the crime scene is at least
consistent with that shoe, although not a confirmed match.
The victim said his assailant was 5' 10"; Lott is 6 feet. I find
that a remarkably good guess, given McGrath’s vantage point:
tied up on the floor.
That leaves only the difference of opinion between the
shade of Lott’s skin. The petitioner emphasizes that no make-
up was ever found to support the speculation that Lott
lightened his skin as part of a disguise. I agree that seems
unlikely. However, the victim was an 80-year-old man who
was on the floor, under attack, even on fire, when he observed
his assailant. Therefore his perception of light skin may have
been inaccurate. In any case, this remains the only
discrepancy that cannot be readily explained; by no stretch of
the imagination could one assert that no reasonable factfinder
would have convicted, even had that contradiction been in the
record.
Lott argues in his brief that McGrath was not able to
identify Lott from the composite sketch. Police reports
indicate that McGrath was not coherent at the time he was
shown the sketch, fell asleep in the middle of the interview,

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No. 04-3462 In re Lott 11
and in fact died a few hours later. It can hardly be said that
the discrepancy is so compelling that no reasonable factfinder
would convict based on all the other trial evidence, not to
mention the suppressed confession which must be weighed in
assessing an actual innocence claim.
Kerosene Oil
Lott emphasizes in his petition that the prosecutor lied at
his trial when he told the judges that McGrath did not own an
oil lamp and that Lott must have brought the oil used to burn
McGrath with him, showing his intent to murder the victim.
The origin of the oil is immaterial to Lott’s claim of actual
innocence. Assuming that McGrath owned the oil, it was
available to Lott, who used it in his attack on the victim.
Were this an argument about prosecutorial misconduct in the
penalty phase of a capital trial, I would see the relevance. In
this context, I cannot draw any inference from the oil that
indicates Lott’s innocence.
Lott has fallen far short of the requirement of producing
“clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found [him] guilty
of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii).
The initially-suppressed evidence, which boils down to a
contradiction over skin tone, and false statement about the
origin of the oil used to burn the victim, also cannot reach the
standard enunciated in Schlup v. Delo: “the habeas petitioner
[must] show that ‘a constitutional violation has probably
resulted in the conviction of one who is actually
innocent.’ . . . To establish the requisite probability, the
petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” Schlup v. Delo 513 U.S. 298, 327 (1995)
(citation omitted). See Herrera v. Collins 506 U.S. 390, 417
(1993) (“[T]he threshold showing for such an assumed right
[not to be executed if actually innocent] would necessarily be
extraordinarily high.”). Lott has not made a prima facie case
of actual innocence nor shown that a constitutional violation
is the cause of his conviction. Therefore, this panel has no
12 In re Lott No. 04-3462
grounds on which to consider his case further. I respectfully
dissent from the grant of permission to file a new habeas
petition, and the attendant stay of execution. I also dissent
from our apparently limitless stay of execution despite the
matter’s being remitted to activity in the district court.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
_____________________________
Clerk

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