Raglin v. Mitchell

Filing 251

DECISION AND ORDER - Petitioner's Renewed Motion for Leave to File aThird Amended and Supplemental Petition for Writ of Habeas Corpus (ECF No. 247) is DENIED. Signed by Magistrate Judge Michael R. Merz on 2/26/2016. (kpf)

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

This capital habeas corpus case is before the Court on Petitioner’s Renewed Motion for
Leave to File a Third Amended and Supplemental Petition for Writ of Habeas Corpus (ECF No.
247). The Warden opposes the Motion (ECF No. 248) and Raglin has filed a Reply in support
(ECF No. 250).
Motions to amend under Fed. R. Civ. P. 15 are non-dispositive under 28 U.S.C. §
636(b)(1)(A) and thus come within the decisional authority of Magistrate Judges in the first
instance, in referred cases.
A habeas corpus petition may be amended as provided in the Rules of Civil Procedure.
28 U.S.C. § 2242. The general standard for considering a motion to amend under Fed. R. Civ. P.
15(a) was enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178
(1962):

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If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc.
-- the leave sought should, as the rules require, be "freely given."
371 U.S. at 182.

In considering whether to grant motions to amend under Rule 15, a court

should consider whether the amendment would be futile, i.e., if it could withstand a motion to
dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.
1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v.
Centran Corp., 747 F.2d 1536 (6th

Cir. 1984); Communications Systems, Inc., v. City of

Danville, 880 F.2d 887 (6th Cir. 1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d
134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21,
23 (6th Cir. 1980). Likewise, a motion to amend may be denied if it is brought after undue delay
or with dilatory motive. Foman,supra; Prather v. Dayton Power & Light Co., 918 F.2d 1255,
1259 (6th Cir. 1990). In Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994), the court repeated and
explicated the Foman factors, noting that “[d]elay by itself is not a sufficient reason to deny a
motion to amend. Notice and substantial prejudice to the opposing party are critical factors in
determining whether an amendment should be granted. Id. at 130, quoting Head v. Jellico
Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989).

Procedural History

The murder involved in this case occurred December 29, 1995. Walter Raglin filed his

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original Petition in this case on September 13, 2000 (ECF No. 14). After a return to state court
for exhaustion purposes, he filed an Amended Petition on March 8, 2005 (ECF No. 76). On
March 2, 2006, the Magistrate Judge recommended the Amended Petition be dismissed with
prejudice (ECF No. 89). On April 6, 2012, Raglin was permitted to amend to add Grounds for
Relief Thirty-Nine and Forty as follows:
Thirty-Ninth Ground for Relief: Raglin’s execution will violate
the Eighth Amendment because Ohio’s lethal injection protocol
will result in cruel and unusual punishment.
Fortieth Ground for Relief: Raglin’s execution will violate the
Fourteenth Amendment because Ohio’s lethal injection protocol
will deprive him of equal protection of the law.

(Quoted in Decision and Order, ECF No. 177, PageID 1304.) The Warden asserted the claims
were barred by the statute of limitations, but the Court accepted Petitioner’s argument that these
claims arose “when the lethal injection protocol being challenged was adopted by the State as of
September 18, 2011.” Id. The Warden objected that the new claims were not cognizable in
habeas corpus, but acknowledged Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011). Id. at
PageID 1305. The Warden also noted Raglin was a plaintiff in In re Ohio Execution Protocol
Litigation, Case No. 2:11-cv-1016, pending before Judge Gregory Frost of this Court and raising
challenges to Ohio’s lethal injection protocol. Without explaining how, Petitioner insisted these
new lethal injection claims were different from his § 1983 claims and the Magistrate Judge
declined “to attempt to sort out at the pleading amendment stage the question(s) of the
interactions of these two proceedings.” Id. at PageID 1305. Raglin then filed his Second
Amended Petition (ECF No. 178). Judge Barrett adopted the Report and Recommendations and
Amended Supplemental Report and Recommendations on the First Amended Petition and ruled
on requests for a certificate of appealability on September 29, 2013 (ECF No. 198), disposing of
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all claims except Grounds Thirty-Nine and Forty.
On Raglin’s Motion, the Court stayed consideration of Raglin’s Thirty-Ninth and Fortieth
Grounds for Relief on February 10, 2014 (ECF No. 204). As a basis for the stay, Raglin noted
that those grounds were no longer viable because Ohio had adopted a new lethal injection
protocol. Id. Based on that statement, the Magistrate Judge recommended those claims be
dismissed without prejudice. Id. Neither party objected and Judge Barrett dismissed those claims
March 3, 2014 (ECF No. 205).
On April 13, 2015, Raglin again “request[ed] leave to file an amended petition raising
newly ripe lethal injection claims,” noting that “[I]t is by now well-established that a change in
Ohio’s lethal-injection protocol gives rise to new claims and thus warrants amendment of a
habeas petition.” (ECF No. 234, PageID 2768, 2770), citing Chinn v. Robinson. No. 3:02-cv-512,
Doc. No. 96 at PageID 1493 (Mar. 25, 2014)(Sargus, J.); Lindsey v. Bradshaw, No. 1:03-cv-702,
Doc. No. 115 at PageID 1651 (Mar. 26, 2014)(Sargus, J.); Robb v. Ishee, No. 2:02-cv-535, Doc.
No. 151 at PageID 1523 (Apr. 7, 2014)(Marbley, J.); and Sheppard v. Robinson, Sixth Circuit
Case No. 13-3900 (Order, Dec. 17, 2013). Raglin then cited the new execution protocol adopted
by the State of Ohio on January 9, 2015, and quoted Judge Frost as holding “method-of-execution
challenges in habeas actions ‘begin[] anew any time Ohio adopts a new written protocol.’” (ECF No.
234, PageID 2771, quoting Sheppard v. Warden, Chillicothe Corr., Inst., 1:12-CV-198, 2013 U.S.
Dist. LEXIS 5560, at *20 (S.D. Ohio Jan. 14, 2013)). He also asserted

Numerous judges concur on this point as well. Smith v. Pineda,
No. 1:12-cv-196, 2012 U.S. Dist. LEXIS 121019, at 13-14 (S.D.
Ohio Aug. 27, 2012) (Merz, M.J.), supplemented by 2012 U.S.
Dist. LEXIS 154037, at 2-4 (S.D. Ohio Oct. 26, 2012), then
adopted by 2012 U.S. Dist. LEXIS 171759, at 2 (S.D. Ohio Dec. 4,
2012) (Rose, J.); Chinn v. Bradshaw, No. 3:02-cv-512, 2012 U.S.
Dist. LEXIS 93083, at 8-9 (S.D. Ohio July 5, 2012) (Sargus, J.);
see also Phillips v. Robinson, No. 5:12-cv-2323, 2013 U.S. Dist.
LEXIS 108820, 44-45 (N.D. Ohio Aug. 2, 2013) (Lioi, J.).
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Id. That Motion to Amend was granted but no third amended petition was filed. On June 29,
2015, Ohio again amended its lethal injection protocol and Raglin was granted until August 3,
2015, to move again to amend, which he did (ECF No. 240).
On September 15, 2016, the Court denied that Motion (ECF No. 243), reported at Raglin
v. Mitchell, 2015 U.S. Dist. LEXIS 125768 (S.D. Ohio Sept. 15, 2015). Noting that it had
previously relied on an expansive reading of Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011),
to allow death row inmates to proceed simultaneously in § 1983 and habeas, the Court held that
its “former application of Adams . . . cannot stand in light of Glossip [v. Gross, 576 U.S. ___,
135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015)].” (ECF No. 243, PageID 3244.)
concluded:

While Raglin’s proposed Grounds for Relief Forty through Fifty
state in conclusory fashion that the pled circumstances render the
death sentence invalid, as this Court said in the Landrum case, “the
conclusions do not follow from the premises.” Landrum [v.
Robinson, 2015 U.S. Dist. LEXIS 116914 (S.D. Ohio 2015)] at
*10.
The Motion to Amend is accordingly DENIED. Raglin may move
again to amend not later than October 5, 2015. If he does so, he
must state plainly how the claims he wishes to plead here differ
from the claims he has pled in In re Ohio Lethal Injection Protocol
Litig., Case No. 2:11-cv-1016.

Id. at PageID 3245. The instant Motion followed.

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The Court

Raglin’s Argument

Raglin asserts the claims he proposes to make in his Third Amended and Supplemental
Petition differ from parallel claims made in the Protocol Case because in that case he must
identify, as Glossip requires, an alternative method of execution which is constitutional, whereas
he does not do so in his claims in this case (ECF No. 247, PageID 3264). A second distinction,
he argues, is that his death sentence could be declared void in a habeas corpus case and that
could not happen in a § 1983 case. Id. at PageID 3264-65. Most importantly, he says, victory
here would mean Ohio could never execute him without violating his constitutional rights. Id. at
PageID 3265.
Summarizing, Raglin argues
An injunction [in § 1983] prohibiting the State from applying the
current execution protocol to Raglin will not remedy the broader
problem that the State simply cannot carry out Raglin’s lethalinjection execution in compliance with the law, regardless of the
protocol in place at that time, and thus cannot execute him at all
under Ohio law. . . . [I]njunctive relief in habeas would, in addition
to enjoining the state from unlawfully obtaining and using
manufactured or compounded or imported thiopental sodium or
pentobarbital in violation of Raglin’s constitutional rights, also
preclude the state from using other drugs and from obtaining any
execution drugs by unlawful means, including those drugs Ohio
has used before but which are not in the current protocol, or any
other drugs Ohio might use.

Id. at PageID 3269-70. And again
The nature of Raglin’s lethal-injection invalidity claims,
challenging the implementation of any Ohio lethal-injection
protocol against him, including the use of any drug or combination
of illegally obtained drugs, differ substantially from the narrow
challenge in Raglin’s § 1983 method-of-execution claims which
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target Ohio’s current execution protocol and leave open the
possibility of execution by some other method of lethal-injection.
Id. at PageID 3271.

Analysis

Upon consideration of Raglin’s arguments, both in the Motion and his Reply to the
Warden’s Response, the Court finds they are not significantly different from the arguments
considered in the case of Ohio death row inmate Michael Turner in Case No. 2:07-cv-595. The
Court has rejected those arguments and found Turner’s proposed new habeas corpus lethal
injections claims are not cognizable in habeas corpus. Turner v Hudson, 2016 U.S. Dist. LEXIS
6019 (S.D. Ohio Jan. 19, 2016). On that authority, the Renewed Motion for Leave to File a
Third Amended and Supplemental Petition (ECF No. 247) is DENIED.

February 26, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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