In re Hanna, No. 19-3881 (6th Cir. 2021)
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Hanna was convicted of aggravated murder and sentenced to death. He exhausted state remedies, then filed a federal habeas corpus petition, which the district court denied in 2009. The Sixth Circuit rejected Hanna’s claim that he was deprived of effective assistance in mitigation because his counsel failed to present a psychologist to testify about organic neurological defects and his troubled childhood. In 2019, Hanna sought leave to file a second or successive 28 U.S.C. 2254 habeas petition and moved to remand his pending petition, arguing that his second-in-time petition is not successive under section 2244(b).
The Sixth Circuit denied both requests, rejecting Hanna’s argument that his new claims could not have been raised in his first petition because his previous habeas counsel suffered a conflict of interest. Hanna’s underlying claims of ineffective assistance in mitigation were raised in the previous petition. Hanna seeks to add new evidence. Hanna has also not shown that he meets the requirements of section 2244(b)(2). Hanna does not claim that his new petition relies on a new rule of constitutional law; he seeks an evidentiary hearing to prove certain facts and all of his claims relate to trial counsel’s representation in mitigation. Mitigation evidence categorically does not meet section 2244(b)(2)(B)(ii)’s requirement that the new facts establish actual innocence. In addition, Hanna’s claims were procedurally defaulted or have been adjudicated in unchallenged state court decisions.
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