-MRM Sheppard v. Bagley

Filing 170

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON (FIRST) MOTION FOR RELIEF FROM JUDGMENT - Petitioner has cited no authority from any court which states that reopening a judgment to allow new claims to be pled maintains the finality of the balance of the j udgment. Because Sheppard can litigate his new lethal injection claims in the new case, the "public policy favoring finality of judgments" enunciated by the Sixth Circuit in Blue Diamond, supra, should be dispositive of the instant Motion. It is again respectfully recommended that the Motion be denied. Objections to R&R due by 10/19/2012. Signed by Magistrate Judge Michael R Merz on 10/2/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BOBBY T. SHEPPARD,
:
Petitioner,

Case No. 1:00-cv-493
:

District Judge Gregory L. Frost
Magistrate Judge Michael R. Merz

-vsNORM ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
(FIRST) MOTION FOR RELIEF FROM JUDGMENT
Petitioner Bobby Sheppard filed a motion for relief from judgment in this case in order to
amend and add lethal injection claims parallel to those added to many of the capital habeas corpus
cases pending in this District and identical to those pled in his new case, Sheppard v. Robinson,
No. 1:12-cv-198 (Doc. No. 144). I recommended denying this Rule 60(b) Motion1 to preserve
the finality of the judgment in this case, which has already been affirmed on appeal and received
certiorari review from the Supreme Court (Report, Doc. No. 152). I also noted in the Report that
this would still allow Sheppard to litigate his habeas lethal injection claims in the new case, where
I have recommended denying the Warden’s objection that the Petition there is a “second or
successive” petition.

1 Petitioner has another Fed. R. Civ. P. 60(b) Motion pending to obtain reopening in light of

Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L.
Ed. 2d 272 (2012) (Doc. No. 150). I have recommended denying the other motion as well (Report, Doc. No. 166).
Petitioner has objected to that Report as well (Doc. No. 169), but the Objections are not yet ripe.

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Petitioner has nonetheless objected to denial of this first Rule 60(b) Motion (Doc. No. 156)
and the District Court has recommitted the matter for reconsideration in light of the Objections
(Doc. No. 157). The Warden has not filed a response to the objections.
Sheppard makes no comment as to why proceeding in the new case does not sufficiently
protect his interests. Instead, he concentrates on why he should be allowed to reopen this case
(Objections, Doc. No. 156, PageID 999-1003).
The Report expressed the Magistrate Judge’s uncertainty about how reopening the
judgment would affect the rulings made in reaching finality. Because there seemed to be no need
to risk the prior judgment’s finality in order to allow Sheppard to litigate his new lethal injection
claims, the Report relied on “significant policy concerns” to recommend denial of the first Motion
to Reopen (Report, Doc. No. 152, PageID 958).
The Objections assert that the “Magistrate Judge’s policy concerns can be allayed
[because] . . . [r]eopening the Court’s judgment to allow Sheppard [to add his lethal injection
claims] would not affect any other portions of that judgment,” (Objections, Doc. No. 156,
PageID 1000), citing Ruiz v. Quarterman, 504 F.3d 523, 524-26 (5th Cir. 2007); Caldwell v.
Chicago, No. 08-c-710, 2009 WL 1010695, *2-4 (N.D. Ill. Apr. 15, 2009); Hadix v. Caruso, No.
4:92-cv-110, 2009 U.S. Dist. LEXIS 52884, *8-10(W.D. Mich. Mar. 31, 2009); and Runningeagle
v. Ryan¸ No. 07-99026, Order, Doc. No. 59-1 (9th Cir. July 18, 2012).
Sheppard asserts that “Ruiz is almost directly on point,” (Objections, Doc. No. 156, PageID
1000), but the Magistrate Judge disagrees. The Fifth Circuit noted that under Gonzalez v. Crosby,
545 U.S. 524 (2005), a Rule 60(b) motion does not present a “claim” for habeas relief if the prior
ruling by the district court was not on the merits. 504 F.3d at 526. In Ruiz the previous ruling

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had not been on the merits, but for failure to exhaust. In this case the prior dismissal was on the
merits. And the abuse of discretion finding in Ruiz, cited by Sheppard, applied because the
district court had found the underlying ineffective assistance claim to be “significant, potentially
meritorious” and Ruiz had no other forum in which to litigate it. 504 F.3d at 530, 532. Here
Sheppard has the new case in which to receive merits consideration of his lethal injection claims.2
Most importantly, Ruiz nowhere holds that reopening the prior judgment will have no impact on
the rulings already made in the case.
Caldwell v. City of Chicago, 2009 WL 1010695 (N. D. Ill. Apr. 15, 2009), was a civil
action under 42 U.S.C. § 1983 where the litigants sought relief from a prior interlocutory
protective order. Why the court believed Fed. R. Civ. P. 60(b) was applicable to a non-final order
is not stated.3 The court only granted relief to the extent it was unopposed by the City of Chicago
and its police officers. There is no statement in the opinion supporting the proposition that
modifying an order for one purpose has no effect on the balance of the order. Because federal
courts have authority to modify interlocutory orders without insisting on compliance with Fed. R.
Civ. P. 60(b), Caldwell is of no assistance in deciding the instant Motion.
Hadix v. Caruso, 2009 U.S. Dist. LEXIS 52884 (W. D. Mich. Mar. 31, 2009), involved
reopening a long-standing consent decree in a prison conditions case under § 1983. The State of
Michigan, in seeking termination of the consent decree in 2009, argued it never should have been
reopened in 2006. The state lost that battle, but won the war in that the permanent injunction was
dissolved. The district court recognized the validity of the policy concerns relied on by the
2 If the District Judge concludes the Magistrate Judge is wrong and the new case is “second or successive,” then that
same rationale would apply to prevent the amendment in this older case, per Gonalez, supra.
3 “Rule 60 regulates the procedures by which a party may obtain relief from a final judgment.”Wright, Miller &
Kane, Federal Practice and Procedure: Civil 2d § 2851.

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Magistrate Judge in this case:
[R]elief under Rule 60(b) is circumscribed by public policy favoring
finality of judgments and termination of litigation. This is especially
true in an application of subsection (6) of Rule 60(b), which applies
only in exceptional or extraordinary circumstances which are not
addressed by the first five numbered clauses of the Rule. This is
because almost every conceivable ground for relief is covered under
the other subsections of Rule 60(b). Consequently, courts must
apply Rule 60(b)(6) relief only in unusual and extreme situations
where principles of equity mandate relief.

Hadix at *8, quoting Blue Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund,
249 F.3d 519 (6th Cir. 2001) (internal punctuation and citations omitted); accord Ford Motor Co.
v. Mustangs Unlimited, Inc., 487 F.3d 465 (6th Cir. 2007). Although relief was sought in Hadix
under Fed. R. Civ. P. 60(b)(6), resort for relief from the prospective effects of an injunction would
almost always be sought instead under Fed. R. Civ. P. 60(b)(5). See Wright, Miller & Kane,
Federal Practice & Procedure: Civil 2d § 2863. The considerations respecting modification of a
permanent injunction are obviously different from those involving a final judgment about past
facts, which is what is involved here.
Finally, Runningeagle v. Ryan, No. 07-99026, 2012 U.S. App. LEXIS 14682 (9th Cir. July
18, 2012), is a circuit court remand for a limited purpose, retaining jurisdiction over the balance of
the case. It does not in any way stand for the proposition that a district court can limit the effect of
reopening a judgment to just allowing new claims to be pled.
Thus Petitioner has cited no authority from any court which states that reopening a
judgment to allow new claims to be pled maintains the finality of the balance of the judgment.
Because Sheppard can litigate his new lethal injection claims in the new case, the “public policy
favoring finality of judgments” enunciated by the Sixth Circuit in Blue Diamond, supra, should be
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dispositive of the instant Motion. It is again respectfully recommended that the Motion be
denied.
October 2, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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