-MRM Sheppard v. Bagley

Filing 190

ORDER denying 181 Motion to Reopen Case; adopting 184 Report and Recommendations.. Signed by Judge Gregory L. Frost on 2/1/16. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOBBY T. SHEPPARD,
Petitioner,
v.

Case No. 1:00-CV-493
JUDGE GREGORY L. FROST
Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,
Respondent.

OPINION AND ORDER
This is a death penalty habeas corpus case. On March 4, 2009, this Court issued final
judgment denying Petitioner’s claims and dismissing his habeas corpus action. (ECF Nos. 131
and 132.) This matter is before the Court for consideration of Petitioner’s Second Motion for
Relief from Judgment Under Rule 60(b)(6), or Alternatively, a Motion for Indicative Ruling
Under Rule 62.1 (ECF No. 181), Respondent’s memorandum in response (ECF No. 182 ),
Petitioner’s reply memorandum (ECF No. 183), the Magistrate Judge’s July 21, 2015 Report and
Recommendations (ECF No. 184), Petitioner’s Objections (ECF No. 186), and Respondent’s
memorandum in response (ECF No. 188 ).
Following the Court’s March 4, 2009 Opinion and Order denying his claims and
dismissing his habeas corpus action, Petitioner filed a March 19, 2009 motion to alter the
judgment. (ECF No. 133.) This Court denied that motion on March 23, 2009. (ECF No. 134.)
On September 14, 2011, the Court of Appeals for the Sixth Circuit affirmed this Court’s decision
dismissing the habeas corpus action (ECF No. 140), and the Supreme Court of the United States
denied certiorari on June 12, 2012 (ECF No. 149).
Petitioner then filed two more motions for relief from judgment, one seeking reopening to

permit him to add claims challenging Ohio’s policies, procedures, and practices for conducting
executions, and the other seeking reconsideration, on the basis of Martinez v. Ryan, 132 S.Ct.
1309 (2012), of this Court’s denial of certain claims. (ECF Nos. 144 and 150.) The Magistrate
Judge issued several Reports and Recommendations recommending that the Court deny
Petitioner’s motions. (ECF Nos. 152, 166, and 170.) On January 14, 2013, this Court issued an
Opinion and Order adopting the Magistrate Judge’s Reports and Recommendations, denying
Petitioner’s motions and overruling his objections. (ECF No. 172.) Petitioner appealed to the
Sixth Circuit. 1
While his appeal was pending, Petitioner filed a motion asking the Sixth Circuit to
remand his case back to this Court for consideration of newly discovered evidence, to wit: the
Declarations of trial counsel Robert Ranz and postconviction counsel Kevin Durkin. The Sixth
Circuit denied Petitioner’s motion, partly on the basis that it was unclear whether or to what
extent the Supreme Court’s decision in Trevino v. Thaler, 133 S.Ct. 1911 (2013), would apply in
Ohio, but also on the basis that “[f]urther, Sheppard cannot demonstrate that the newly
discovered evidence constitutes the exceptional circumstances necessary for relief under Rule
60(b)(6).” (ECF No. 180, at Page ID # 1636.) As the Magistrate Judge noted, “[t]he instant
Motion followed.” (ECF No. 184, at Page ID # 1712.)
This most recent iteration of Petitioner’s motion for relief from judgment seeks
reconsideration of the same claim at issue in his preceding motion for reconsideration—namely

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With respect to Petitioner’s motion to reopen his case for the purpose of amending his
petition to add method-of-execution claims, this Court denied that request for the reason that
Petitioner had raised those claims in a second-in-time habeas corpus action, (Case No. 1:12-cv198). (ECF No. 172, at Page ID # 1555-1557.) All references going forward to Petitioner’s
motion for Rule 60(b)(6) relief pertain to his Martinez-based motion, not his motion to add
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the procedural default of his claim of ineffective assistance of trial counsel in connection with
mitigation-phase juror misconduct. This time, Petitioner bases his motion for reconsideration on
the Supreme Court’s opinion in Trevino v. Thaler, 133 S.Ct. 1911 (2013), and the Sixth Circuit’s
opinion in McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750 (6th Cir. 2013). (ECF
No. 181, at Page ID # 1640.)
When this Court denied Petitioner’s preceding motion for reconsideration, the Court
concluded that Petitioner’s postconviction counsel had not performed deficiently and to
Petitioner’s prejudice sufficient to excuse the procedural default of the claim Petitioner really
wants to litigate: ineffective assistance of counsel in connection with mitigation-phase juror
misconduct (ground nine, sub-part six). The essence of Petitioner’s current argument is that
Trevino, not Martinez controls, and that Trevino emphasizes the need to develop newly
discovered evidence in demonstrating that postconviction counsel rendered ineffective
assistance. Petitioner asserts that the Declarations he obtained from trial counsel Robert Ranz
and postconviction counsel Kevin Durkin, combined with the complete record in this case,
demonstrate: (1) ineffective assistance of postconviction counsel sufficient to permit review of
Petitioner’s claim of juror-misconduct ineffective assistance of trial counsel; (2) a meritorious
juror-misconduct ineffective assistance of trial counsel claim; and (3) exceptional circumstances
warranting Rule 60(b)(6) relief. In tacit recognition that this Court may not possess jurisdiction
to entertain his motion, in view of the fact that this Court’s denial of his preceding Rule 60(b)(6)
motion was at the time he filed the most recent Rule 60(b) pending on appeal to the Sixth
Circuit, Petitioner alternatively requests an indicative rule from this Court pursuant to Rule 62.1.

method-of-execution claims.
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(ECF No. 181, at Page ID # 1685.)
Respondent opposed Petitioner’s motion on the basis that this Court was without
jurisdiction to entertain Petitioner’s motion, in view of the fact this Court’s denial of Petitioner’s
preceding Rule 60(b)(6) motion was pending on appeal to the Court of Appeals for the Sixth
Circuit. (ECF No. 182.) With respect to Petitioner’s alternative request for a Rule 62.1
indicative ruling, Respondent argued that the Sixth Circuit’s previous rejection of Petitioner’s
newly discovered facts is the law of this case and obviated any need for an indicative ruling. (Id.
at Page ID # 1699-1700.) Petitioner’s reply, accordingly, centered primarily on Respondent’s
jurisdictional argument and secondarily on Respondent’s argument challenging the need for an
indicative ruling. (ECF No. 183.)
On July 21, 2015, the Magistrate Judge issued Report and Recommendations
recommending that this Court deny Petitioner’s motion. (ECF No. 184.) The Magistrate Judge
concluded in the first instance that the Court should deny Petitioner’s motion because the notice
of appeal that Petitioner had filed with respect to his preceding Rule 60(b)(6) motion divested
this Court of jurisdiction over his case. (Id. at Page ID # 1712-1713.) In reaching that
conclusion, the Magistrate Judge rejected Petitioner’s argument that because his appeal stemmed
from the denial of a motion for relief from judgment, rather than from a final judgment, the
appeal did not divest this Court of jurisdiction. (Id. at Page ID # 1713-1714.) The Magistrate
Judge also rejected Petitioner’s argument that jurisdiction remained with the Court because the
instant motion concerns matters not at issue in the appeal. (Id. at Page ID # 1714-1715.)
Finally, the Magistrate Judge concluded that no indicative ruling pursuant to Fed. R. Civ.
P. 62.1 was warranted. Specifically, the Magistrate Judge concluded that the Sixth Circuit’s

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November 11, 2012 order denying Petitioner’s motion to remand the case provided the law of the
case on the question of whether relief should be granted under Fed. R. Civ. P. 60(b)(6). The
Magistrate Judge reasoned that the instant motion was based on the identical evidence that
Petitioner presented to the Sixth Circuit when he sought remand, that Petitioner did not cite any
subsequent contrary review on the law, and that Petitioner did not suggest that the Sixth Circuit’s
denial of the remand was clearly erroneous. (Id. at Page ID # 1717.)
Petitioner filed objections on September 14, 2015. (ECF No. 186.) Petitioner’s sole
objection is that the Magistrate Judge erred in his determination about the effect of the Sixth
Circuit’s order denying Petitioner’s motion to remand in light of newly discovered evidence on
Petitioner’s instant Rule 60(b)(6) motion. Petitioner explains:
The Magistrate Judge characterized Sheppard’s position as arguing that
the Sixth Circuit considered the new evidence “ ‘in isolation’ from considering
Trevino as new law.” (R&R, ECF No. 184 at PageID 1716.) Sheppard does not
dispute that the Sixth Circuit considered Trevino in ruling on his motion. Instead,
his argument for why the Sixth Circuit’s order does not foreclose his new 60(b)
motion is that the Sixth Circuit considered only the two new declarations in light
of Trevino, and did not consider all of the other evidence that Sheppard presents
in his present motion to demonstrate, in total, the existence of extraordinary
circumstances.
(ECF No. 186, at Page ID # 1728.) Petitioner ends by stating that “[b]ecause the Magistrate
Judge based his conclusions on an argument that Sheppard did not make, and did not consider
the argument Sheppard actually makes in support of his position that the Sixth Circuit’s order
prohibits neither his new 60(b) motion nor an indicative ruling from this Court, Sheppard
respectfully requests that this Court overrule the Report and Recommendation (ECF No. 184).”
(ECF No. 186, at Page ID # 1728-1729.)
After the parties made their arguments and the Magistrate Judge issued his Report and

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Recommendations, the Sixth Circuit on December 8, 2015, affirmed this Court’s decision
denying Petitioner’s initial Martinez-based motion for reconsideration. (ECF No. 189.) The
Sixth Circuit first addressed whether Petitioner’s motion should be construed as a second or
successive petition, answering that question as follows:
In Sheppard’s first federal habeas petition and brief in support, he asserted that his
trial counsel had been ineffective because of two omissions (among others) in the
state trial court: first, that counsel did not submit expert testimony to challenge
the definition of paranoid schizophrenia that Jones gave to juror Fox, see
Sheppard App’x at 1490; and second, that counsel did not elicit testimony from
Jones to the effect that Fox had mischaracterized her description of paranoid
schizophrenia, see R. 89 at 117. Sheppard’s Rule 60(b) motion would add two
more omissions to this list: that counsel did not obtain from Fox an admission
that his conversation with Jones made it “easier” for him to vote in favor of a
death sentence; and that counsel did not obtain from Jones an admission that she
had not read Smalldon’s testimony before submitting her affidavit to the trial
court. R. 150 at 46. Neither of those omissions were set forth in Sheppard’s first
habeas petition. (Indeed his brief in support of that petition told the district court
that Sheppard’s trial counsel “could not have reasonably anticipated” that Jones
had not read Smalldon’s testimony, R. 89 at 108-09 (emphasis added), which
conflicts with Sheppard’s claim now that counsel should have elicited an
admission to that effect.) Hence Sheppard’s Rule 60(b) motion does not confine
itself to the substance of his first habeas petition, but instead tries to add new
grounds for relief. To that extent, therefore, Sheppard’s Rule 60(b) motion “is in
substance a successive habeas petition and should be treated accordingly.”
Gonzalez, 545 U.S. at 531. Thus we will not consider Sheppard’s claims
concerning the admissions that his trial counsel allegedly should have obtained
from Fox and Jones.
(ECF No. 189, at Page ID # 1742.)
The Sixth Circuit turned next to the question of whether the two remaining omissions that
Petitioner alleged met the Rule 60(b) standard to reopen this Court’s judgment. The Sixth
Circuit answered that question in the negative, concluding essentially that Petitioner has not
shown the “extraordinary circumstances” necessary to warrant reopening. Relying on Gonzalez
v. Crosby, 545 U.S. 524 (2005), the Sixth Circuit noted first that “our court has already held that

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the Supreme Court’s decision in Martinez and its follow-on decision in Trevino v. Thaler, 133
S.Ct. 1911 (2013), are not ‘extraordinary’ within the meaning of Rule 60(b)(6).” (ECF No. 189,
at Page ID # 1743 (citations omitted).) Next, the Sixth Circuit found that a lack of diligence on
Petitioner’s part in seeking relief from the Supreme Court during direct review in his habeas
corpus confirmed that Martinez was not an extraordinary circumstance warranting Rule 60(b)(6)
relief from judgment. (Id. at Page ID # 1744.) “Here,” the Sixth Circuit explained, “the
Supreme Court had actually issued its opinion in Martinez a month before Sheppard filed his
petition for certiorari—and yet Sheppard never mentioned the case in his petition.” (Id.
(emphasis in original).)
The Sixth Circuit concluded by “mak[ing] some points in response to our dissenting
colleague.” (Id.) First, the Sixth Circuit disparaged the dissent’s insistence on “relitigat[ing]
issues we decided in Sheppard’s last appeal[,]” pointing out that “[t]he Supreme Court denied
certiorari as to those issues, and we are content to leave thing where they stood last time.” (Id.)
Next, the Sixth Circuit disputed the dissent’s suggestion that the Sixth Circuit had previously
held that Petitioner’s counsel in state court had been constitutionally ineffective. To that point,
the Sixth Circuit added “that the implications of Fox’s and Jones’s testimony in the federal
evidentiary hearing are not merely as Copernican as the dissent and Sheppard think they are.”
(Id.) “Third,” the Sixth Circuit continued, “the dissent entirely overlooks that the federal courts
have already entered a final judgment denying Sheppard’s petition for habeas relief in this case.”
(Id. at Page ID # 1745.) Finally, the Sixth Circuit impugned the dissent’s suggestion that
Gonzalez was irrelevant, insisting that the circumstances presented in Gonzalez—namely a Rule
60(b) appeal seeking to set aside a final judgment in a habeas case on the ground that some new

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Supreme Court decision is extraordinary—were precisely the circumstances presented by
Petitioner.
As a preliminary matter, the Sixth Circuit’s December 8, 2015 order denying Petitioner’s
preceding Rule 60(b) motion obviates any need for this Court to address the jurisdictional
question presented by Petitioner’s filing of the instant Rule 60(b) motion while the appeal from
his preceding Rule 60(b) motion was pending.
Both the Sixth Circuit’s order denying Petitioner’s motion for remand and order
affirming this Court’s denial of Petitioner’s preceding Rule 60(b) motion are dispositive of the
instant motion. Neither Trevino v. Thaler nor the Declarations of Petitioner’s trial counsel and
postconviction counsel—even considered with all of the other evidence and arguments Petitioner
asserts—constitute the “extraordinary circumstances” necessary to justify Rule 60(b)(6) relief.
The Sixth Circuit has held as much and this Court is bound by that holding.
In his objection to the Magistrate Judge’s interpretation of the Sixth Circuit’s order
denying his motion for remand, Petitioner asserts that the Sixth Circuit considered his newly
developed evidence in isolation instead of in light of all of the evidence and arguments that
Petitioner asserted. Because the Sixth Circuit did not properly Trevino v. Thaler in considering
Petitioner’s motion for remand, according to Petitioner, the Sixth Circuit’s decision not to
remand the case does not impact the instant motion asking for reconsideration in light of Trevino.
Even if the Court agreed with that interpretation of the Sixth Circuit’s order—and the
Court does not—the Sixth Circuit subsequently made clear in its December 8, 2015 order
denying Petitioner’s preceding motion that even considering the new declarations that Petitioner
submitted, Petitioner did not demonstrate “extraordinary circumstances.” That order is

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dispositive because reasons the Sixth Circuit cited for why Petitioner had not shown
“extraordinary circumstances” had nothing to do with the declarations. First, the Sixth Circuit
noted that the circuit had already determined that neither Martinez nor Trevino constitute
“extraordinary circumstances.” That determination renders irrelevant whether the Sixth Circuit
considered Petitioner’s new evidence in isolation or in light of Petitioner’s other evidence and
arguments as Trevino, according to Petitioner, demands. Second, the Sixth Circuit concluded
that Petitioner’s lack of diligence in raising Martinez in his certiorari petition from the denial of
his first habeas petition undermined a finding of “extraordinary circumstances.” The
declarations that Petitioner has added have no bearing on that conclusion.
Presented with the new declarations that Petitioner submitted, as well as with the other
evidence and arguments Petitioner asserted, the Sixth Circuit made unmistakably clear its
disinterest in giving any further consideration to Petitioner’s arguments on this issue. This Court
is bound by that determination and, furthermore, fully agrees with it. There accordingly exists
no basis for this Court to grant Rule 60(b)(6) relief or a Rule 62.1indicative ruling.
For the foregoing reasons, the Court DENIES Petitioner’s Second Motion for Relief
from Judgment Under Rule 60(b)(6), or Alternatively, a Motion for Indicative Rule Under Rule
62.1 (ECF No. 181). The Court further OVERRULES Petitioner’s Objections to the Magistrate
Judge’s July 21, 2015 Report and Recommendations (ECF No. 186) and ADOPTS the Report
and Recommendations to the extent that they recommended this Court deny Petitioner’s motions.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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