Raglin v. Mitchell

Filing 263

DECISION AND ORDER - Petitioner's Motion for Reconsideration of Ground [for Relief] 27(A)(ECF No. 254) and Motion for Leave to File an Amended Petition and To Stay These Proceedings and Hold Them in Abeyance (ECF No. 255) are DENIED. Signed by Magistrate Judge Michael R. Merz on 7/28/2016. (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 Motion for
Reconsideration of Ground [for Relief] 27(A)(ECF No. 254) and Motion for Leave to File an
Amended Petition and To Stay These Proceedings and Hold Them in Abeyance (ECF No. 255).
The Warden has filed a combined Memorandum in Opposition (ECF No. 258). Petitioner has
filed a Reply (ECF No. 261) and a Notice of Supplemental Authority (ECF No. 262).
Raglin’s Ground for Relief 27(A) reads as follows
Walter Raglin’s constitutional rights as guaranteed by the Fifth,
Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments were
violated when the trial court, in its decision to impose a sentence of
death, improperly considered and weighed valid or improper
aggravating circumstances; failed to specify the reasons why
aggravation outweighs mitigation beyond a reasonable doubt; and
failed to consider and weigh valid mitigating factors presented by
the defense.
A. The trial court improperly considered an uncharged
and unproven statutory aggravating factor in
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sentencing Mr. Raglin to death.
(Amended Petition, ECF No. 76-1, PageID 83.)
The undersigned recommended dismissing Ground for Relief Twenty-Seven, writing:
In his Twenty-Seventh Ground for Relief, Petitioner asserts the
trial judge improperly considered and weighed invalid or improper
aggravating circumstances, failed to specify the reasons why the
aggravating circumstances outweighed the mitigating factors, and
failed to consider and weigh valid mitigating factors (First
Amended Petition, Doc. No. 76 at 62).
This claim was, as Respondent concedes, properly presented to the
Ohio Supreme Court as Petitioner’s Proposition of Law No. 1 (See
Appellant’s Brief, Joint Appendix, Vol.VI at 828). In denying
relief on this Proposition, the Ohio Supreme Court wrote:
The trial court, in its sentencing opinion, considered and
weighed an R.C. 2929.04(A)(3) aggravating circumstance
even though appellant was neither charged with nor
convicted of an R.C. 2929.04(A)(3) death penalty
specification. However, this error in the trial court’s
sentencing opinion, and all other allegations of error
raised by appellant in Proposition of Law No. 1, can be
readily cured by our independent review of appellant’s
death sentence. See, generally, State v. Lott (1990), 51
Ohio St.3d 160, 170- 173, 555 N.E.2d 293, 304-307. See,
also, State v. Reynolds (1998), 80 Ohio St.3d 670, 684685, 687 N.E.2d 1358, 1373; State v. Gumm (1995), 73
Ohio St.3d 413, 424, 653 N.E.2d 253, 265; and State v.
Fox (1994), 69 Ohio St.3d 183, 191-192, 631 N.E.2d 124,
131.
State v. Raglin, 83 Ohio St. 3d at 257. The Ohio Supreme Court
thus recognized the weighing error which the trial judge made, but
reweighed the proper aggravating circumstances against the
mitigating factors and reached the same conclusion that the trial
court had. That reweighing is constitutionally sufficient to
eliminate the impact of the invalid aggravating circumstance. Fox
v.Coyle, 271 F.3d 658, 667 (6th Cir. 2001)(citing Wainright v.
Goode, 464 U.S. 78 (1983), and Barclay v. Florida, 463 U.S. 939
(1983)). Petitioner’s Twenty-Seventh Ground for Relief is
therefore without merit.
(Report and Recommendations, ECF No. 89, PageID 409-10, filed February 2, 2006.) After
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nearly four months of extensions of time, Petitioner filed Objections, but did not object to the
proposed disposition of Ground Twenty-Seven (ECF No. 95). Approximately two and one-half
years later, new counsel for Petitioner moved to revive abandoned claims (ECF No. 130) and to
supplement his Objections on certain grounds for relief (ECF No. 131). Ground Twenty-Seven
was not included in either Motion.
In an Order of September 29, 2013, the District Judge adopted the recommendation
dismissing Ground Twenty-Seven, noting that no objection had been made (Opinion and Order,
ECF No. 198, PageID 2310). No judgment was entered at that time because consideration of
Raglin’s claims related to Ohio’s lethal injection protocol was stayed (ECF No. 203). With
various permutations, that stay remains in place pending issuance of the mandate in Adams v.
Bradshaw, ___ F.3d ___, 2016 U.S. App. LEXIS 10630 (6th Cir. June 13, 2016). On July 12,
2016, the Sixth Circuit stayed its mandate pending certiorari proceedings in the Supreme Court.
Petitioner asserts and the Warden does not deny that this Court has authority to
reconsider its disposition of Ground 27(A) because it remains interlocutory, no judgment having
been entered as yet.
Courts disfavor motions for reconsideration because they consume a court’s scarce time
for attention to a matter that has already been decided. They are subject to limitations based on
that disfavor.
As a general principle, motions for reconsideration are looked
upon with disfavor unless the moving party demonstrates: (1) a
manifest error of law; (2) newly discovered evidence which was
not available previously to the parties; or (3) intervening authority.
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert.
denied, 476 U.S. 1171, 90 L. Ed. 2d 982 (1986).

Meekison v. Ohio Dep't of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio

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1998)(Marbley, J.). Petitioner relies on Hurst v. Florida, 136 S. Ct. 616 (2016), as intervening
authority.
Walter Raglin murdered Michael Bany on December 29, 1995.

The Ohio Supreme

Court affirmed his conviction and death sentence on September 30, 1998. State v. Raglin, 83
Ohio St. 3d 253 (1998). His conviction became final on direct appeal when the United States
Supreme Court denied certiorari March 1, 1999. Raglin v. Ohio, 525 U.S. 1180 (1999). Hurst
was decided January 12, 2016.
Subject to two narrow exceptions, a case that is decided after a defendant's conviction and
sentence become final may not provide the basis for federal habeas relief if it announces a new
rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague
v. Lane, 489 U.S. 288 (1989). The Teague analysis is normally a threshold issue. Caspari v.
Bohlen, 510 U.S. 383 (1994).
Two exceptions to the Teague rule, however, permit the retroactive
application of a new rule whenever: 1) the rule places certain kinds
of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe or otherwise prohibits
imposition of a certain type of punishment for a class of defendants
because of their status or offense; or 2) the rule announces a new
“watershed” rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.
In re Carl Green, 144 F.3d 384, 386 (6th Cir. 1998), citing Caspari. at 396. A Supreme Court
decision announces a new rule where the issue addressed was susceptible to debate among
reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-415 (1990). A new rule is “a rule that
... was not dictated by precedent existing at the time the defendant’s conviction became final.”
Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288, 301
(1989)(emphasis in original). The rule in Crawford v. Washington, 541 U.S. 36 (2004), for
example, is a new rule, but does not fall within the “watershed” exception to Teague. Whorton v.
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Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the date Whorton was decided, the
only rule the Supreme Court had identified as qualifying under the “watershed” exception is that
adopted in Gideon v. Wainwright, 372 U.S. 335 (1963). It has identified none since.
Petitioner asserts the holding in Hurst comes within the watershed procedural exception1 in
Teague, but the Magistrate Judge is unpersuaded. Certainly it is nowhere near the magnitude of
Gideon. It appears to be somewhat of the same magnitude as Ring v. Arizona, 536 U.S. 584
(2002), which the Supreme Court itself has held to be not retroactively applicable to cases
pending on collateral review. Schriro v. Summlerin, 542 U.S. 348 (2004).
As supplemental authority for his position that Hurst is applicable retroactively, Raglin
cites State v. Kirkland, 145 Ohio St. 3d 1455 (2016). The entire ruling in Kirkland is “On
application for reopening under S.Ct.Prac.R. 11.06. Application denied. On motion for order or
relief. Motion granted. Cause remanded for new mitigation and sentencing hearing.”

The

decision was made without published opinion and over three dissenting votes. The argument of
Kirkland’s counsel in that case did not address the Teague retroactivity question (See attachment
to ECF No. 262). Before an opinion from a state court can be persuasive authority on a question
of federal law, there must at least be an opinion. There is none in Kirkland and counsel’s
speculation that the Ohio Supreme Court must have thought about the Teague question and
decided it sub silentio is not persuasive.
Raglin also contends this Court should hold the case in abeyance and allow the Ohio
courts to decide Teague retroactivity in the first instance, relying on Montgomery v. Louisiana,
577 U.S. ___, 136 S. Ct. 718 (2016). Petitioner reads Montgomery to hold “that the retroactivity
framework set out in Teague v. Lane, 489 U.S. 288 (1989), represents a constitutional

1

Plainly the holding in Hurst is not a new “substantive” rule within the meaning of Teague; Petitioner does not
argue to the contrary.

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requirement that the state courts are obliged to apply in their own collateral proceedings.” (ECF
No. 254, PageID 3508, citing Montgomery, 136 S. Ct. at 731-32). That is not an accurate
reading of the case. Montgomery requires state courts to apply new substantive constitutional
rights when they are exercising collateral review jurisdiction.

Justice Kennedy expressly

disclaimed any decision regarding procedural rights: “This holding is limited to Teague’s first
exception for substantive rules; the constitutional status of Teague’s exception for watershed
rules of procedure need not be addressed here.” 136 S. Ct. at 729.
Petitioner’s Motions to Amend and to Stay are DENIED.

July 28, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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