Raglin v. Mitchell
Filing
215
DECISION AND ORDER; REPORT AND RECOMMENDATIONS - It is respectfully RECOMMENDED that the Court enter final judgment on itsOrder of September 29, 2013 (Doc. No. 198, PageID 2367) (1) dismissing with prejudice all claims in the First Amended Petition e xcept Grounds Thirty-Nine and Forty; (2) granting a certificate of appealability as set forth in that Order; and (3) certifying under Fed. R. Civ. P. 54 that the judgment is final. And it is ORDERED that Raglins Motion for an extension of time to and including April 13, 2015, to move for further amendment to add new lethal injection claims be DENIED. Signed by Magistrate Judge Michael R Merz on 11/3/2014. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
WALTER RAGLIN,
:
Petitioner,
Case No. 1:00-cv-767
:
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
-vsBETTY MITCHELL, Warden,
:
Respondent.
DECISION AND ORDER; REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner’s Renewed Motion to
Extend the Stay of his Lethal-Injection Claims and to Extend the Time to File his Motion for
Leave to Amend his habeas Petition with Amended Lethal-Injunction Claims (Doc. No. 211).
The Warden opposes the extension (Doc. No. 213) and Raglin has filed a Reply in support (Doc.
No. 214).
Relevant Procedural History
On September 28, 2013, District Judge Barrett adopted the Magistrate Judge’s Report and
Recommendations (Doc. No. 89) and Amended Supplemental Report and Recommendations
(Doc. No. 100) dismissing with prejudice the claims made in Raglin’s First Amended Petition
(Doc. No. 198, PageID 2366). At the same time he granted a certificate of appealability on a
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number of Raglin’s claims and overruled Respondent’s Objections to the Magistrate Judge’s order
allowing Raglin to amend to add his proposed Thirty-Ninth and Fortieth Grounds for Relief
challenging Ohio’s lethal injection protocol.
Id. at PageID 2367.
Consistent with Judge
Barrett’s Order, Raglin had already filed his Second Amended Petition including the lethal
injection claims (See Doc. Nos. 178, 199).
Thereafter the Magistrate Judge granted, over Respondent’s opposition, Raglin’s Motion
to Stay consideration of his lethal injection claims in light of Ohio’s replacement of the lethal
injection protocol which formed the basis of Grounds for Relief Thirty-Nine and Forty (Doc. No.
203). At the same time the Magistrate Judge recommended dismissing the now-moot Grounds
for Relief Thirty-Nine and Forty (Doc. No. 204). Respondent did not appeal the stay and Raglin
did not object to the dismissal. Thereafter Raglin filed several unopposed motions for extension
of the stay which were all granted (Doc. Nos. 206, 208, 209). The last of the unopposed
extensions expired October 2, 2014. To protect both parties rights to be heard on the matter, the
Magistrate Judge sua sponte suspended the deadline to “a date to be set by the Court in ruling on
the pending Motion” (Order, Doc. No. 212, PageID 2495).
The Parties’ Positions
Raglin now seeks extension of his time to file amended lethal injection claims until April
13, 2015, on the same rationale as before, updated to deal with the problematic execution of
Dennis McGuire on January 16, 2014 (Doc. No. 211).1 The date of April 13, 2015, was chosen
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Raglin also seeks an extension to the same date of the Court’s consideration of his lethal injection claims; however,
2
because it is approximately sixty days after the scheduled execution of Ronald Phillips, presently
set for February 11, 2015.
The Warden opposes the extension on the basis of Scott v. Houk, 760 F.3d 497 (6th Cir.
2014)(Response, Doc. No. 213, PageID 2496). The Warden reads Scott as “clarify[ying] that
method-of-execution claims should be pursued through Title 42 U.S.C. Section 1983 litigation.”
Id. The Warden notes that Raglin, like Scott, is a plaintiff in In re Ohio Execution Protocol
Litigation, Case No. 2:11-cv-1016, pending before District Judge Frost. Respondent concludes:
“Because there is no merit to the assertion that a lethal-injection sentence violates the Constitution,
this claim is not cognizable in habeas and the Warden asks that this Court deny Raglin’s request to
further delay the habeas proceedings.” Id. at PageID 2497.
Raglin offers a lengthy Reply (Doc. No. 214), essentially arguing that Scott does not
overrule Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), in which the Sixth Circuit held lethal
injection claims were cognizable in habeas corpus.
Analysis
A number of capitally sentenced persons with habeas corpus petitions pending before this
Court have sought relief similar to that sought by Raglin on the same rationale. See, e.g. Turner
v. Hudson, Case No. 2:07-cv-595(TSB); Bays v. Warden, Case No. 3:08-cv-076 (TMR); Smith v.
Warden, Case No. 1:12-cv-196(TMR); Chinn v. Warden, Case No. 3:02-cv-512(EAS); and
Sheppard v. Warden, Case No. 1:12-cv-198(GLF).
no such claims are currently pending.
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While similar relief is sought and opposed in these cases on the same rationales by both
Petitioners and the Attorney General, considerations of judicial economy suggest treating the
cases individually rather than with a blanket decision. The Magistrate Judge has been granting
extensions in all these cases for the last year, but almost always without opposition by the State of
Ohio. Now that the State has opposed an extension and thereby reasserted, at least implicitly, its
interest in finality in these cases, reexamination of a blanket approach is called for.
There are good reasons for delaying adjudication of habeas corpus lethal injection claims
pending the outcome of In re Ohio Execution Protocol Litigation. Judge Frost has consolidated
in that case the § 1983 injunctive relief claims about Ohio’s lethal injection protocols of many of
Ohio’s death row inmates. He is also managing very extensive discovery in that case which the
Sixth Circuit expects will provide death row petitioners with the facts they may need to support
habeas corpus lethal injection claims. Scott, 760 F.3d at 512. The Sixth Circuit has also
expressed its confidence in that litigation process. “We are assured that Scott’s death sentence
will not be carried out if, and so long as, a federal court determines that Ohio is incapable of doing
so in accordance with the law.” Id.
However, delaying adjudication of habeas corpus lethal injection claims pending § 1983
decision(s) by Judge Frost does not require postponing decisions on other claims raised by capital
habeas petitioners. In cases such as this one, where all other claims have been finally decided,
there is no pressing reason to delay appeal and consideration by the Sixth Circuit. Notably,
circuit court adjudication of death penalty habeas appeals is not always speedy. For example,
Scott’s appeal was filed in the Sixth Circuit in 2011 but decided in 2014. Moore v. Mitchell, 708
F.3d 760 (6th Cir. 2013), had been appealed in 2008. Moreland v. Bradshaw, 699 F.3d 908 (6th
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Cir. 2012), had been appealed in 2009. Some cases are resolved more quickly; McGuire’s appeal
was filed and resolved during 2013. See McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013). On
the other hand, Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000), was appealed to the Sixth Circuit in
1996. Presumably that court faces the same difficulties deciding these death penalty habeas
corpus cases that the district courts face: large records, rapidly developing law from the Supreme
Court, scarcity of law clerk assistance, and the desire for legal certainty when human life is at
stake. Given those considerations, which are unlikely to change, it is unwise to postpone
consideration of all claims in these cases until after the lethal injection claims are ripe.
Of course, different judges will weigh considerations of judicial economy differently. In
Turner v. Hudson, Case No. 2:07-cv-595, 2014 U.S. Dist. LEXIS _______ (S.D. Ohio, Oct. 30,
2014), the Magistrate Judge, in granting the same requested extension to April 13, 2015, noted that
Judge Black had already mooted the pending Reports and Recommendations on the merits.
Other district judges may take a different position. Absent direction from other district judges,
the Magistrate Judge must act on his own best judgment of the matter.
The Sixth Circuit itself may eventually disavow splitting the lethal injection and non-lethal
injection claims. However, the Sixth Circuit’s recent decision in Scott supports this approach by
dismissing Scott’s per se lethal injection claim and declining a remand for factual development of
the claim, leaving Scott’s factual development to the § 1983 action. This approach is also
supported by the Sixth Circuit’s decision in Frazier v. Jenkins, ___ F.3d ___, 2014 U.S. App.
LEXIS 20645 (6th Cir. Oct. 27, 2014), where a different panel2 of the circuit court reached a
decision parallel to Scott: affirming denial of habeas corpus relief on a lethal injection claim and
2
Scott was decided by Circuit Judges Cole (now Chief Judge), Griffin, and Kethledge; Frazier was decided by Circuit
Judges Moore, Gibbons, and Sutton.
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denying remand for factual development in deference to the § 1983 action. Id. at *44-45.
Raglin is certainly correct that Scott did not overrule Adams v. Bradshaw, nor did it purport to do
so, but that does not mean Scott (and Frazier) are irrelevant in deciding how to apply Adams.
Raglin argues that it is “premature at this pleading stage” to sort out the interactions
between Raglin’s lethal-injection habeas corpus claims and his § 1983 claims, relying on the
Magistrate Judge’s prior decision granting the Motion to Amend (Reply, Doc. No. 214, PageID
2500, citing Decision and Order, Doc. No. 177). However, the cited Order was filed April 6,
2012, two and one-half years ago. In the meantime, Judge Barrett has adopted the Reports on the
merits and ruled on the certificate of appealability issues, the State of Ohio has gone through
several lethal injection protocols, and the Sixth Circuit has offered the additional guidance
provided by Scott and Frazier. It has become anomalous to speak of this case as at the “pleading
amendment stage” when the merit issues have been decided and the claims added in 2012 have
been dismissed as moot.
Just as there was no need to remand Scott’s or Frazier’s lethal injection habeas corpus
claims for further factual development, there is no need to extend Raglin’s time for leave to amend
to April 13, 2015, or some later date when there is in place the actual lethal injection protocol
under which the State proposes to execute Walter Raglin. Rather, entering judgment now on the
claims already adjudicated will make this case ripe for appeal on the non-lethal injection claims.
Raglin will be able to do what his counsel say Scott can do: file a second-in-time habeas petition
limited to lethal injection claims within one year from the date on which the offending protocol is
adopted.
It is accordingly respectfully RECOMMENDED that the Court enter final judgment on its
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Order of September 29, 2013 (Doc. No. 198, PageID 2367)
(1)
dismissing with prejudice all claims in the First Amended Petition except Grounds
Thirty-Nine and Forty;
(2)
granting a certificate of appealability as set forth in that Order; and
(3)
certifying under Fed. R. Civ. P. 54 that the judgment is final.
And it is ORDERED that Raglin’s Motion for an extension of time to and including April
13, 2015, to move for further amendment to add new lethal injection claims be DENIED.
November 3, 2014.
s/ Michael R. Merz
United States Magistrate Judge
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