CA6: Carpenter not retroactive and doesn’t support successor habeas

Carpenter doesn’t suffice for a successor habeas. Besides, he’d lose on the merits. “Taylor cannot meet the statutory criteria for filing a second or successive habeas corpus petition. First, he does not rely on any newly discovered evidence. Second, ‘the Supreme Court has not held that the holding in Carpenter is retroactive [to cases] on collateral review.’ See In re Conzelmann, 872 F.3d 375, 377 (6th Cir. 2017) (‘[A] new rule is not “made retroactive to cases on collateral review” unless the Supreme Court holds it to be retroactive.’ (quoting Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001))). [¶] Moreover, even if Carpenter were retroactively applicable to Taylor’s case, he has failed to make a prima facie showing that it would benefit him. As noted by the state court of appeals, law enforcement almost certainly was absolved of any obligation to obtain a search warrant in view of exigent circumstances. Taylor, 174 N.E.3d at 5 n.2.” In re Taylor, 2022 U.S. App. LEXIS 30976 (6th Cir. Nov. 8, 2022).*

Plaintiff was a NOPD criminalist who did drug analysis who complained that their tests didn’t differentiate between marijuana and hemp. Ultimately he was ordered to take a drug test and ordered from home to do it at the crime lab. He objected and resigned rather than take the drug test. He stated a claim that survives summary judgment that defendants violated clearly established law in doing so. Von Derhaar v. Stalbert, 2022 U.S. Dist. LEXIS 202962 (E.D. La. Nov. 8, 2022).*

The R&R found petitioner’s probation search occurred in violation of statute but the statute was adopted after. If anything it was harmless error. [Also, the statute adopted the case law, and Stone would bar relief anyway.] Terrell v. Payne, 2022 U.S. Dist. LEXIS 203457 (W.D. Ark. Nov. 8, 2022).*

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