UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MICHAEL K. BAILEY, ┐ Petitioner-Appellant, │ │ > No. 18-3581 v. │ │ │ LYNEAL WAINWRIGHT, Warden, │ Respondent-Appellee. │ │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:18-cv-00881—Dan A. Polster, District Judge.

Argued: October 22, 2019

Decided and Filed: February 20, 2020

Before: SUTTON, KETHLEDGE, and STRANCH, Circuit Judges. _________________

COUNSEL ARGUED: Erin E. Cady, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Jerri Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Erin E. Cady, Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Jerri Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

SUTTON, J., delivered the opinion of the court in which KETHLEDGE, J., joined. STRANCH, J. (pp. 6–8), delivered a separate dissenting opinion. No. 18-3581 Bailey v. Wainwright Page 2

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OPINION _________________

SUTTON, Circuit Judge. Michael Bailey petitioned a federal district court for a writ of habeas corpus because he believes the Ohio Parole Board violated his right to due process by relying on inaccurate records about the nature of his underlying murder conviction. The district court dismissed the § 2254 petition because it did not state a plausible claim for habeas relief. We affirm.

I.

We may never know exactly what happened in the Dutch Village Carryout, a roadside store near Toledo, Ohio, on December 14, 1974. But we do know that an Ohio jury believed (beyond a reasonable doubt) that Bailey murdered Thomas Cannon, the Carryout’s clerk. Bailey does not dispute his conviction for Cannon’s murder, but he does dispute how Ohio’s parole board has described his crime. As Bailey tells it, he entered the store at his accomplice’s behest, robbed the cash register at gunpoint, then shot Cannon twice—once in the neck, once in the head. As the Ohio Parole Board tells it, Bailey entered the store, robbed Cannon, forced him to the ground, “told him . . . exactly what he was planning on doing,” placed the gun to the back of his head and shot him “execution style.” R.1 at 18. The Board also ascribes to Bailey motives he believes inaccurate: “[H]e was in need of money and planned on performing robberies until he had the amount needed and he stated the only way he was going to be successful was to kill all witnesses.” Id.

Bailey first learned about the Board’s description in 2016. Two years before, the Ohio Supreme Court had ruled that Ohio prisoners had a right under Ohio law to a factually accurate parole record. State ex rel. Keith v. Ohio Adult Parole Auth., 24 N.E.3d 1132, 1137 (Ohio 2014). To vindicate this right, several Ohio prisoners, including Bailey, successfully petitioned the Board for their parole candidate information sheets, which include a description of the prisoner’s offense. Bail