In re Wogenstahl, No. 18-3287 (6th Cir. 2018)
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Wogenstahl was convicted of aggravated murder, kidnapping, and aggravated burglary, and was sentenced to death. Following an unsuccessful direct appeal, in 1996, Wogenstahl sought post-conviction relief, asserting ineffective assistance of trial counsel and the suppression of evidence in violation of Brady v. Maryland and seeking to conduct DNA testing. Ohio courts denied relief. The Sixth Circuit affirmed the denial of Wogenstahl's 1999 petition for federal habeas relief. In 2014, Wogenstahl again sought a new trial, citing a 2013 Justice Department letter, stating that testimony by an FBI examiner, included “inappropriate” statements that “‘exceed[ed] the limits of the science’ of microscopic-hair-comparison analysis.” State courts denied relief. Wogenstahl sought to file another habeas petition in the district court, arguing that his petition, although second-in-time, was not second or successive.
The Sixth Circuit granted permission to file a second or successive habeas corpus petition. Wogenstahl is attacking the same state court judgment of conviction and his claims were not unripe at the time of his initial petition. Wogenstahl’s claims fall under 28 U.S.C. 2244(b)(2)(B); he is raising new claims, relying on facts that he only recently discovered. That Wogenstahl did not previously obtain that evidence is not attributable to a lack of reasonable diligence. Wogenstahl has made prima facie showings that the evidence is impeaching; the state suppressed the material in the original police file and made inaccurate statements misrepresenting the hair analysis; and that he can establish by clear and convincing evidence that no reasonable fact-finder would have found him guilty.
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