We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS LETS 2244 “FACTS VERSUS CLAIMS” CIRCUIT SPLIT FESTER

What the Supreme Court did not do last Friday is nearly as interesting as what it did do.

As anyone who has pursued a post-conviction motion under 28 USC § 2255 knows, the law does its best to limit such petitions to one to a customer. Bringing a second or successive § 2255 motion is limited by 28 USC § 2244(b) to cases where the Supreme Court has declared a statute unconstitutional or where “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.”

But what is the meaning of the term “factual predicate?” Some circuits have held that a factual predicate is the underlying fact that the claim is about. Others have held that a factual predicate includes evidence that supports a previously unavailable claim.

In the 1st, 2nd, 3rd, 5th, 7th, 8th, 10th and 11th Circuits, the claim itself has to be new. Up to last year, only the 9th Circuit had held that new evidence supporting a claim that has always been available is enough.

Kayla Ayers was convicted of arson under Ohio law in 2011 based in part on testimony from an expert hired by the State that the fire that consumed her house started at two different corners of a mattress at the same time (which pretty much proved that it was deliberately set). In the years since her conviction, she maintained her innocence but could not afford to hire her own expert to make her case. In 2019, the Ohio Innocence Project agreed to take on her case and paid for a real arson pro who made mincemeat of the State’s expert testimony.

The state courts said she was too late with her new evidence, as did the federal district court when she filed a 28 USC § 2254 petition (a § 2254 is like a § 2255 motion, but for state prisoners seeking federal review of a state post-conviction decision). When Kayla appealed to the 6th Circuit, however, the appeals court concluded that the new expert report was precisely the kind of “factual predicate” that would justify allowing her to file her petition for post-conviction relief even after the one-year statute of limitations had run, reasoning that she could not have “discovered” it earlier due to not being able to afford to hire an expert until the Innocence Project agreed to bankroll her.

The State of Ohio asked the US Supreme Court to reverse the 6th Circuit and settle the circuit split. Last week, after relisting the State’s certiorari petition three times, the Supremes refused to review the case.

This does not mean that SCOTUS agrees with the 6th’s position that new evidence about an old claim is enough to constitute a new “factual predicate” under § 2244(b). It could be the majority of justices agreed that there was a reasonable probability Kayla would have been acquitted if the new evidence had been available. Possibly, the reason for denial was that Kayla had already served all of her time and was at home (presumably without any matches in the house).

But the broad definition of “factual predicate” for purposes of the timeliness of Kayla’s petition (§ 2244(d)(1)(D) applies equally to “factual predicate” in 2244(b)(2)(B) covers federal prisoners seeking permission to bring a late § 2255 as well. With the 6th‘s Ayers decision now binding, federal prisoners in that circuit have a much broader means of getting back into court for a second § 2255 motion.

Chambers-Smith v. Ayers, Case No 24-584 (certiorari denied June 6, 2025)

Ayers v. ODRC, 113 F4th 665 (6th Cir. 2024)

– Thomas L. Root