NOT RECOMMENDED FOR PUBLICATION File Name: 17a0364n.06
No. 15-5356

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT WILLIAM G. ALLEN, Petitioner-Appellant,

v. BRUCE WESTBROOKS, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

BEFORE: KEITH, MCKEAGUE, and WHITE, Circuit Judges. PER CURIAM. Petitioner-Appellant William Allen, an African American, was convicted of murder in 1968 by a Davidson C ounty, Tennessee, jury and was sentenced to 99 years in prison. He has consistently argued—f rom a pre-trial plea in abatement to direct appeal, and through numerous rounds of state post-conviction and federal habeas proceedings— that African Americans had been systemically excluded from grand-jury service in Davidson County at the time he was indicted. After a resentencing in 2007, Alle n again sought federal habeas relief, challenging his new sentence a nd renewing his challenge to the grand-jury selection method. The district court rejected his sentence-bas ed challenge on the merits and determined that his grand-jury-discrimination cl aim requires authorization from this court as a “second or successive” petition. 1 We initially denied a certificat e of appealability (COA) as to

1 28 U.S.C. § 2244(b) provides:No. 15-5356, Allen v. Westbrooks

-2- the grand-jury-discrimination claim, but granted rehearing and issued a COA after our decision
in King v. Morgan , 807 F.3d 154 (6th Cir. 2015). Because the district court erroneously characterized Allen’s grand-jury-discrimination claim, we REMAND for further proceedings.
I The last reasoned state-court opinion on the merits of the grand-jury-discrimination claim is a 1973 decision of the Tennessee Court of Crimin al Appeals affirming th e state trial court’s denial of post-conviction relief after an evidentiary hearing, hol ding that African Americans had not been systematically excluded from gra nd-jury service during the relevant time. 2 Allen v.
Tennessee (Tenn. Crim. App. Feb. 1, 1973) (1973 TCCA Op inion). Allen then raised the grandjury-discrimination claim in federal habeas pro ceedings. The district court dismissed Allen’s petition, holding that he “failed to establish . . . purposeful discri mination in the selection of the Grand Jury which indicted [him].” 3 This court affirmed in an unpublished opinion, holding that the district court’s finding that there was no purposeful discrimination in the selection of the (1) A claim presented in a second or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 applicati on 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 (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlyi ng the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to esta blish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (3) (A) Before a second or successive application permitte d by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. . . . .
2 Allen contends that this exclusion stemmed from the us e of the “key man” system to select grand juries. Under this system trial judges personally selected grand jurors. Between September 1958 and Allen’s indictment in March 1967, Davidson County grand juries had a significantly lower proportion of African Americans than theirproportion of the county’s population. The 1973 TCCA Opinion is available at R. 32-2, at 92, Case No. 3:12-cv00242 (M.D. Tenn.).
3 The order, dated September 24, 1973, is available at R. 41-26, at 11, Case No. 3:12-cv-00242 (M.D. Tenn.) (citing Swain v. Alabama , 380 U.S. 202 (1965)).No. 15-5356, Allen v. Westbrooks

-3- grand jury that indicted Allen was supported by substantial evidence and thus was not clearly

erroneous. Allen v. Rose , No. 73-2215, at *3–4 (6th Cir. Apr. 30, 1974). 4 These proceedings all occurred prior to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and the present 28 U.S.C. § 2254(d) framework. In 2007, Allen again pursued post- conviction relief in state c ourt, seeking resentencing and reasserting his grand-jury-discrimination cl aim. He was granted resentencing and was resentenced to life imprisonm ent, but the state trial 5 and criminal-appeals courts determined that the grand-jury-discrimination claim had been “pre viously determined” and thus could not be the subject of a new petition. Allen v. State , 2011 WL 1601587, at *9 (Tenn. Crim. App. Apr. 25, 2011). After exhausting state post- conviction proceedings, Allen br ought the instant petition for habeas relief, raising a claim related to his resentencing and again asserting the grand-jurydiscrimination claim. The district court determ ined that under the Supreme Court’s holding in Magwood v. Patterson, 561 U.S. 320 (2010), Allen’s petiti on was not “second or successive” with respect to the sentencing cl aim; the court addressed this claim on the merits and denied relief. The district court did not, however, ad dress the grand-jury-discrimination claim, other than to state that the claim is “second or succe ssive” because it was already heard on the merits in the 1973/1974 federal habeas proceedings, 6 and thus requires this court’s authorization to proceed. After additional procedural hi story not recounted here, Allen applied for a COA. This court denied the application, and Allen petitioned for rehearing. While the petition for rehearing

4 The opinion is available at R. 41-30, at 2, Case No. 3:12-cv-00242 (M.D. Tenn.). 5 The trial-court order is available at R. 42-9, at 7–8, Case No. 3:12-cv-00242 (M.D. Tenn.).
6 In addition to the instant habeas petition and the 1973/ 1974 petition, Allen filed federal habeas petitions in 1971 and 1993, which were dismissed for lack of exhaustion of state post-conviction remedies.No. 15-5356, Allen v. Westbrooks

-4- was pending, this court decided King , supra , holding that a habeas petiti on that challenges a new judgment entered as a result of a resentencing is not second or succe ssive, even if the new judgment leaves the underlying conv iction undisturbed and the issues in the petition relate to that underlying judgment. Concluding th at the grand-jury-discrimina tion claim “merits a rehearing certificate of appealability in light of this court’s intervening decision in King v. Morgan ,” we granted rehearing and a COA as to this one claim. See Order, Case No. 15-5356, R. 16-1 (6th Cir. Feb. 8, 2016). Our COA order is ambiguous regarding whether the issue before us is 1) whether the district court properly deemed Allen’s petition s econd or successive relative to the grand-jurydiscrimination claim and correctly required this court’s permissi on to proceed, or 2) a merits review of the underlying claim, including the sta ndards to be applied in addressing it—questions the district court never reached b ecause it believed the petition to be second or successive. Due perhaps to the COA’s ambiguity, the merits review was not fully briefed by the parties. 7 Given the state of the case and briefing, we must follow th e “general rule . . . th at a federal appellate court does not consider an i ssue not passed upon below.” Singleton v. Wulff , 428 U.S. 106, 120 (1976). What is clear is that our decision in King controls and Allen’s petition is not second or successive. The grand-jury-discrimination claim wa s thus properly before the district court. See King , 807 F.3d at 154.

7 On the merits, Allen provides an analysis unde r 28 U.S.C. § 2254(d)(1), but mostly relies on Jefferson v. Morgan , 962 F.2d 1185 (6th Cir. 1992). Jefferson is a published decision of this court affirming the grant of habeas relief based on grand-jury discrimination in Davidson County, Tennessee, decided nearly eighteen years after this court rejected Allen’s claim challenging the same selection practice in the same county. The Warden does not address the application of Jefferson beyond relying on the abuse-of-the-writ bar, nor does he provide analysis of the 1973 TCCA Opinion.No. 15-5356, Allen v. Westbrooks

-5- II
In King , we held that the entry of a new judgm ent resets the “second or successive” count so that the first habeas peti tion challenging a new judgment is not second or su ccessive, even when it challenges the bases for an undisturbe d conviction. The Warden acknowledges as much, but argues that the pre-AEDPA a buse-of-the-writ doctrine neverthe less applies and bars Allen’s grand-jury-discrimination claim because it was prev iously determined on th e merits. In reply, Allen contends that § 2244(b) codifies and modi fies the abuse-of-the-writ doctrine and thus the abuse analysis should end because his pe tition is not “second or successive.” Cf. Magwood v.
Patterson , 561 U.S. 320, 337 (2010) (“The dissent . . . errs by interpreting the phrase ‘second or successive’ by reference to our longstanding doctr ine governing abuse of the writ. AEDPA modifies those abuse-of-the-writ prin ciples and creates new statut ory rules under § 2244(b). These rules apply only to ‘second or successive’ applications

. ”) (Thomas, J., writing for himself and Justice Scalia) (emphasis added).
In King , the state argued that extending Magwood to permit post-resentencing habeas claims challenging the petitione r’s undisturbed conviction, rather than the newly imposed sentence—claims that likely would have been barred under pre-AEDPA a buse-of-the-writ case law—would conflict with AEDPA’s animating purpose to cut back on successive habeas petitions. We replied that the animating purpose could not trump the statute’s focus on “judgments,” not “claims,” “sentences” or “convictions.” We acknowledged that, It is not clear at any rate what the net effect of our decision will be on habeas practice in this circuit. Yes, if a ne w judgment resets the “second or successive” count with respect to all claims, that ma y allow more habeas petitions than would have been the case unde r the State’s approach. And, yes, many tools for addressing repeat claims may not be available in this setting: (1) The entry of a new judgment normally resets the stat ute-of-limitations clock, 28 U.S.C. § 2244(d)(1)(A); Rashad , 675 F.3d at 567–68; (2) res judicata generally does not apply to habeas challenges even when a petitioner raises the same claim afterNo. 15-5356, Allen v. Westbrooks

-6- resentencing as he had in an earlier petition, see Felker , 518 U.S. at 664, 116 S.Ct. 2333; McCleskey , 499 U.S. at 480–81, 111 S.Ct. 1454; and (3) the law-of-the-case doctrine likely would not apply du e to the intervening judgment, cf. Rosales– Garcia v. Holland, 322 F.3d 386, 398 n. 11 (6th Cir. 2003) (en banc). 8 We went on to explain, But other obstacles remain. All habeas petitioners, including King on remand, must show that they did not procedurally default each claim and that they exhausted each claim. And if the federa l courts previously addressed the merits of the claim, that likely will not be difficult to sort out. “It will not take ... long to dispose of such claims where the court has already analyzed the legal issues.” Magwood , 561 U.S. at 340 n. 15, 130 S.Ct. 2788. It thus is fair to say, as Magwood has said, that any concern that our decision will set off a flood of “abusive claims” is “greatly exaggerated.” Id. at 340, 130 S.Ct. 2788. 9
Post- King , we again observed, in In re Stansell , 828 F.3d 412, 419 (6th Cir. 2016), that although AEDPA generally raised the bar petitioners must clear to make successive collateral attacks, in some circumstances (like King’s and now Allen’s) petitions that might have been treated as abuses of the writ before AEDPA now face a lower bar to reach merits review. 10 To hold, as the Warden argues, that AEDPA places King claims at our threshol d only for us to apply pre-AEDPA law and label them abusive, thus cl osing the door that AEDPA left open, would be at odds with the statute. 11 For the foregoing reasons, we reverse the determination that Allen’s grand-jurydiscrimination claim is “second or successive,” re quiring authorization by th is court, and reject

8 King , 807 F.3d at 159–60.
9 Id. at 160.
10 In Stansell we observed that “[w]hile the statute might have made it more difficult across the board for applicants to file successive petitions, that does not mean th at every petition barred as an abuse of the writ must also be barred by the new requirements. The statute might have lowered the barrier for a few applicants (those challenging new judgments) and raised it for many others (those challenging old ones), resulting in fewer successive applications overall. That is the conclusion to which the st atute’s text leads, and that is the conclusion the Supreme Court reached in Magwood .” 828 F.3d at 419. Applying that reasoning here, § 2244(b)(1)’s bar on claims that were presented in a prior application applies to second an d successive applications, which Allen’s is not.
11 Cf. Magwood , 561 U.S. at 338 (“In light of this complex history of the phrase ‘second or successive,’ we must rely upon [AEDPA’s] text to determine when the phrase applies, rather than pre-AEDPA precedents or superseded statutory formulations.”) (Thomas, J., writing for himself and Justice Scalia).No. 15-5356, Allen v. Westbrooks

-7- the argument that the claim must be dismissed as an abuse of the writ. 12 The parties shall address all other issues to the district court. We REMAND for further proceedings.

12 We decide today only that the abuse-of-the-writ doctrine did not permit the district court to dismiss this case as second or successive and thus requiring authorization from this court to proceed. We express no view on the district court’s ability to consider the history and prior rulings in the case on remand. Compare Colon v. Sheahan, No. 13-CIV-6744, 2016 WL 3919643, at *10 (S.D.N.Y. Jan. 13, 2016), report and recommendation adopted, No. 13-cv-6744, 2016 WL 3926443 (S.D.N.Y. July 14, 2016) (reading Magwood ’s dicta that it will “not take long” to dispose of claims “where the court has already analyzed the legal issues” to allow for the summary dismissal of previously adjudicated habeas claims under abuse-of-the-writ principles) with Smalls v. Lee , No. 12-CV-2083, 2016 WL 5334986, at *9 (S.D.N.Y. Sept. 22, 2016) (expressing uncertainty as to whether Magwood ’s dicta “empowers district courts to summarily dismiss [previously adjudicated] habeas claims properly raised a second time without undertaking an independent examination of the merits.”).