Hill v. Mitchell

842 F.3d 910

Genesis HILL, Petitioner–Appellee/Cross–Appellant,

v.Betty MITCHELL, Warden, Respondent–Appellant/Cross–Appellee.

Nos. 13-3412/3492

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2016

Decided and Filed: December 1, 2016

Rehearing En Banc Denied February 2, 2017^*

ARGUED: Jocelyn S. Kelly, Office of the

Ohio Attorney General, Columbus, Ohio, for Appellant/Cross–Appellee. Justin C. Thompson, Office of the Federal Public Defender, Columbus, Ohio, for Appellee/Cross–Appellant. ON BRIEF: Jocelyn S. Kelly, David M. Henry, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant/Cross–Appellee. Justin C. Thompson, Office of the Federal Public Defender, Columbus, Ohio, Lawrence Bradfield Hughes, Porter Wright Morris & Arthur LLP, Columbus, Ohio, for Appellee/Cross–Appellant. John A. Freedman, Arnold & Porter LLP, Washington, D.C., for Amicus Curiae.

Before: COLE, Chief Judge; BATCHELDER and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the lead opinion in which BATCHELDER, J., joined in all but § III.D. BATCHELDER, J. (pp. 48–50), delivered a separate concurring opinion. COLE, C.J. (pp. 51–62), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

An Ohio jury convicted Genesis Hill of kidnapping and murdering his infant daughter and sentenced him to death. The district court held that the prosecution violated the rule of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing favorable evidence—a police report and the baby's mother's grand jury testimony—and granted a conditional writ of habeas corpus. However, Hill violated a congressionally mandated procedural requisite to habeas relief by bringing his Brady claim well beyond AEDPA's one-year statute of limitations period. Because Hill's Brady claim is procedurally barred and is otherwise without merit, and because his other grounds for relief are also without merit, we reverse the grant of habeas relief.

I

Factual Background. The Ohio Supreme Court provided a detailed background of the events leading to Hill's conviction and sentence:

On May 31, 1991, defendant-appellant, Genesis Hill, crept into his girlfriend's apartment in Cincinnati and surreptitiously removed their six-month-old daughter, Domika Dudley. On June 2, police found Domika's body, wrapped in trash bags, in a vacant lot behind Hill's house.

Hill, age nineteen, and Teresa Dudley, age eighteen, lived near each other and had an on-going relationship. Their daughter, Domika Dudley, was born in November 1990. Around May 29, 1991, Barbara Janson, a neighbor, heard Teresa "making silly little comments" to Hill that she was going to take him to court for child support. Hill replied that "he'd kill that little bitch before he paid anything." Teresa recalled Hill saying, "I bet I don't pay," when she asked him about child support.

On May 31, in the late afternoon, Hill and Teresa were together in Hill's yard. Teresa became upset, they argued, and Teresa went home. That evening, Teresa went to sleep in her mother's second-floor apartment in the same room as Domika. Between 11:00 p.m. and midnight, Janson and another neighbor saw Hill enter the front yard of Teresa's apartment building, but they did not see Hill leave. That front entrance was the only entry way to her apartment except for the back yard, which was enclosed by a high wall. Ten to fifteen minutes after the neighbors saw Hill, Teresa came out and said Domika was missing.

Teresa went to Hill's home, but was told that Hill was not there and did not have the baby. Hill lived in the same building as did his uncle and two aunts. Just then, Hill appeared, but he denied knowing where his daughter was. A neighborhood search for Domika by police proved unsuccessful. Hill appeared unconcerned, did not participate in the search, and was "snickering" and "grinning" as Teresa talked to police about their missing baby.

Around 5:45 a.m., June 1, Teresa and one of Hill's aunts found a distinctive blue and pink barrette on the floor of Hill's garage. That barrette was identical to one used in Domika's hair before she went to sleep.

On the afternoon of June 2, police found a suspicious SMA® baby formula carton in an overgrown vacant lot behind Hill's garage. That box was not there on the day before when police searched the lot. Domika's body was inside the carton. A plastic shopping bag and three plastic trash bags had been successively wrapped around her body. Black electrical tape was wrapped around the outer trash bag.

A man's blue shirt, with white and red stripes, was tied around Domika's head. Teresa and Janson identified this shirt as one that "looks like" a shirt Hill owned.

Domika died as a result of three skull fractures, and she had been dead for more than twelve hours. Either a strong, blunt force had struck her head, or her head had been crushed. She might have been injured in a fall, but it seems only if another force had hit her during or after the fall. She was wearing only a diaper and two barrettes.

The baby formula box, in which Domika was found, was similar to one that Hill's aunt had placed in the trash pile next to Hill's garage. The box was in the trash on June 1, but not on June 2. Batch numbers on an SMA® can from the aunt's pantry matched batch numbers on the box in which Domika was found. Hill's uncle was unable to find the black electrical tape that he kept in a tool box.

A forensic expert testified that the last trash bag wrapped around Domika had once been directly attached to a trash bag found in Hill's kitchen. Microscopic grain, crease, and other distinctive marks made in the manufacturing process matched exactly on the two trash bags.

At Teresa's apartment, police found Hill's right thumb print on a hallway light bulb near where Teresa and Domika had slept. When Teresa went to sleep that night, the hallway door had been partly open and the light had been on. When she awoke and discovered Domika missing, the light bulb was unscrewed.

On the evening of June 2, the day Domika's body was found, a Cincinnati bus driver overheard a conversation on his bus. One young man, crying and upset, told another, "he could not believe what he had done to a little baby." The man further stated, "he thought he might get the chair for it." After the bus driver heard the news about a dead baby, police were called. The bus driver picked Hill out of a photo array as the young man crying on the bus.

A grand jury indicted Hill on two felony-murder counts in violation of [Ohio Revised Code] 2903.01 : murder during an aggravated burglary (Count I) and during a kidnapping (Count II). Each aggravated murder count contained two death-penalty specifications under R.C. 2929.04(A)(7) (murder during an aggravated burglary and murder during a kidnapping). Count III charged aggravated burglary in violation of R.C. 2911.11, and Count IV charged kidnapping in violation of R.C. 2905.01. Hill pled not guilty.

At trial, numerous friends and relatives testified for Hill and described his activities on the evening of May 31. Defense witnesses suggested that only two trash bags had been in the kitchen; that Teresa was not a good mother; that she had been aggressive towards Hill on May 31; that she had access to the trash bags in Hill's kitchen; and that she may have "planted" the barrette on the garage floor.

Hill testified as to his activities on May 31. He admitted he had been in the hallway, outside Teresa's door, around 11:00 p.m., and had unscrewed the light bulb. He claimed he only "whistled" to Teresa. When she did not answer, he left and went out the front, the same way he came in. He said he then "[w]ent on about [his] business" (drinking with friends). In his narrative testimony, Hill implicitly denied taking Domika, but he did not explicitly do so. Cross-examination revealed discrepancies between his testimony and his statements to police and two mental health professionals.

The jury found Hill guilty as charged.

State v. Hill , 75 Ohio St.3d 195, 661 N.E.2d 1068, 1072–74 (1996).

During the penalty phase, numerous relatives and friends testified regarding Hill's character and upbringing and Dr. Nancy Schmidtgoessling testified regarding Hill's mental health and background. Hill also submitted an unsworn statement, where he said, "I feel hurt. Growing up was hard. A lot of things wasn't right for me," and he "struggled to survive." Id. at 1074. He was "sorry that you all have to be here," "sorry that the baby [was] gone," and "sorry for the family." Id. He did not admit or deny killing Domika. After hearing the evidence, the jury recommended the death penalty.

Procedural Background. The Ohio Court of Appeals and the Ohio Supreme Court affirmed Hill's convictions and sentence. State v. Hill , Nos. C–910916, C–940487, 1994 WL 721580, at *15 (Ohio Ct. App. Dec. 21, 1994), aff'd , 75 Ohio St.3d 195, 661 N.E.2d 1068, 1085 (1996), cert. denied , 519 U.S. 895, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). Hill sought post-conviction relief in state court on various grounds, including alleged unrelated Brady violations, but was unsuccessful. State v. Hill , No. C–100554, 2011 WL 3477183, at *7–8 (Ohio Ct. App. Aug. 10, 2011), perm. app. denied , 132 Ohio St.3d 1513, 974 N.E.2d 112 (2012) (table decision) (third petition); R. 263, Ohio Ct. App. Decision, Page ID 6849, perm. app. denied , 102 Ohio St.3d 1447, 808 N.E.2d 398 (Ohio 2004) (table decision) (second petition); State v. Hill , 90 Ohio St.3d 571, 740 N.E.2d 282, 283 (2001) (denying motion to reopen petition for post-conviction relief); State v. Hill , No. C–961052, 1997 WL 727587, at *2 (Ohio Ct. App. Nov. 21, 1997), perm. app. denied , 81 Ohio St.3d 1468, 690 N.E.2d 1288 (Ohio 1998) (table decision) (first petition).

Hill filed a habeas petition in the district court in June 1998 raising numerous grounds for relief, including a Brady claim alleging that the State suppressed favorable evidence. He filed an amended petition in April 1999, raising a Brad...