Raglin v. Mitchell

Filing 267

REPORT AND RECOMMENDATIONS ON PETITIONER'S MOTION TO EXPAND THE CERTIFICATE OF APPEALABILITY re 264 - Conclusion Because, as Judge Hinkle found, reasonable jurists could disagree on the retroactivity of Hurst and the applicability of Montgomery, the Magistrate Judge respectfully recommends that Petitioners Motion to Expand the Certificate of Appealability be GRANTED. Objections to R&R due by 12/19/2016. Signed by Magistrate Judge Michael R. Merz on 12/2/2016. (srb)

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.

REPORT AND RECOMMENDATIONS ON PETITIONER’S MOTION
TO EXPAND THE CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s Motion to Expand the
Certificate of Appealability in this case to include the issues related to Hurst v. Florida, 577 U.S.
___, 136 S. Ct. 616 (2016), and Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016),
that he raised in his motion to amend the petition (ECF No. 264). Respondent opposes the
Motion (Memo in Opp., ECF No. 265) and Raglin has filed a Reply in Support (ECF No. 266).
Because denial of a certificate of appealability can be tantamount to denying an appeal, it
is properly treated as a dispositive motion under 28 U.S.C. § 636(b), requiring a recommended
decision from an assigned Magistrate Judge. Compare Hanson v. Mahoney, 433 F.3d 1107 (9th
Cir. 2006).
Petitioner’s Motion to Amend to add a claim under Hurst was filed March 24, 2016 (ECF
No. 255). After briefing, the Magistrate Judge denied the Motion on July 28, 2016, concluding
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that Hurst did not come within either of the narrow categories recognized in Teague v. Lane, 489
U.S. 288 (1989), for retroactive application of new Supreme Court law to cases pending on
collateral review (Decision and Order, ECF No. 263). Petitioner took no appeal to Judge Barrett
of that decision, but instead filed the instant Motion to Expand the Certificate of Appealability.
The test for whether to grant a certificate of appealability is whether reasonable jurists
would disagree with the District Court’s conclusion. Slack v. McDaniel, 529 U.S. 473, 484
(2000). That test must be applied on a claim-by-claim basis. Porterfield v. Bell, 258 F.3d 484
(6th Cir. 2001); Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Although the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")
requires circuit judges to make the appealability decision, district courts have the power to issue
certificates of appealability under the AEDPA in ' 2254 cases. Lyons v. Ohio Adult Parole
Authority, 105 F.3d 1063 (6th Cir. 1997); Hunter v. United States, 101 F.3d 1565 (11th Cir.
1996)(en banc). Likewise, district courts are to be the initial decisionmakers on certificates of
appealability under ' 2255.

Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997)(adopting

analysis in Lozada v. United States, 107 F.3d 1011, 1017 (2nd Cir. 1997).
Petitioner asserts this Court’s conclusion on retroactivity is debatable among jurists of
reason on the basis of Guardado v. Jones, No. 4:15-cv-256, 2016 U.S. Dist. LEXIS 69976 (N.D.
Fla. May 27, 2016). Petitioner also asserts that Guardado has been followed in another Florida
case, Archer v. Jones, No. 3:06-cv-312 (N.D. Fla. June 3, 2016)(unreported; copy at ECF No.
264, PageID 3628, et seq.).
On the retroactivity of Hurst, Judge Hinkle, in allowing habeas counsel to represent
Guardodo in state court proceedings to exhaust a Hurst claim, stated:
Third, the respondent says any Hurst claim is futile, because Hurst
is not retroactive. But one can reasonably argue both sides of this
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issue; the claim is not futile. The line of decisions that spawned
Hurst shows why this is so. The line goes back at least to Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and was first applied to the death penalty in Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Under this line of decisions, a defendant has this right: any fact
(other than a prior conviction) that increases the maximum
sentence that can be imposed on the defendant must be found by a
jury on proof beyond a reasonable doubt. The Supreme Court has
held a jury-right decision—indeed, Ring itself—not retroactive.
See Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L.
Ed. 2d 442 (2004). But Schriro did not address the requirement for
proof beyond a reasonable doubt. See id. at 351 n.1. The Supreme
Court has held a proof-beyond-a-reasonable-doubt decision
retroactive. See Ivan V. v. City of New York, 407 U.S. 203, 92 S.
Ct. 1951, 32 L. Ed. 2d 659 (1972).

Id. at *3-4. In Archer, Chief Judge Rodgers merely followed Judge Hinkle’s decision, finding
his “reasoning persuasive . . . .” (See ECF No. 264, PageID 3630.)
Judge Hinkle himself conclude Hurst is retroactively applicable on collateral review, but
merely that the issue is debatable – “one can reasonably argue.” On the side of that question on
which the undersigned came down, he cites the case this Court relied on Schriro v. Summlerin.
On the other hand, he cites Ivan v. New York, 407 U.S. 203 (1972), a case in which the Supreme
Court retroactively applied In re Winship, 397 U.S. 358 (1970), to a conviction which had
become final two months before Winship was decided. Thus Judge Hinkle arrived at his decision
by the orthodox judicial reasoning process – analogizing the case before him to two contrasting
but arguably applicable Supreme Court decisions. His conclusion is no mere ipse dixit.
The Court that gave us Ivan also decided, less than three weeks later, that every thenextant death sentence in America was unconstitutional. Furman v. Georgia, 408 U.S. 238
(1972). Things have obviously changed since then, particularly with the decision in Teague. But
the Court cannot say that reliance on Ivan is irrational.

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Conclusion
Because, as Judge Hinkle found, reasonable jurists could disagree on the retroactivity of
Hurst and the applicability of Montgomery, the Magistrate Judge respectfully recommends that
Petitioner’s Motion to Expand the Certificate of Appealability be GRANTED.

December 2, 2016.
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. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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