Raglin v. Mitchell

Filing 275

DECISION AND ORDER - To the extent and for the reasons set forth within, Raglin's Renewed Motion 272 is GRANTED. Petitioner may, not later than April 24, 2017, file a Third Amended Petition with specific instructions. Signed by Magistrate Judge Michael R. Merz on 4/10/2017. (kpf) Modified on 4/10/2017 to change document type (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 an Amended and Supplemental Petition Raising Lethal Injection Grounds for
Relief (“Renewed Motion,” ECF No. 272).

Procedural History

On December 27, 1995, Petitioner Walter Raglin murdered Michael Bany in Cincinnati,
Ohio. After conviction and imposition of a sentence of death, Raglin appealed to the Ohio
Supreme Court which affirmed the conviction and sentence. State v. Raglin, 83 Ohio St. 3d 253
(1998), cert. den., 525 U.S. 1180 (March 1, 1999). After denial of certiorari, Raglin filed his
Petition in this Court September 13, 2000 (Doc. No. 14) and a First Amended Petition on March
8, 2005 (ECF No. 76). On August 5, 2005, District Judge Rice dismissed the Second, Thirty-

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Seventh, and Thirty-Eighth Grounds for Relief (ECF No. 87).

On February 2, 2006, the

Magistrate Judge recommended dismissing the First Amended Petition with prejudice (ECF No.
89). Petitioner filed a Second Amended Petition on April 17, 2012 (ECF No. 178).
In overruling Respondent’s Objections to the proposed second amended petition, Judge
Barrett wrote:
The Sixth Circuit has held that challenges to Ohio's legal injection
procedures are cognizable in a habeas petition. Adams v.
Bradshaw, 644 F.3d 481, 482-83 (6th Cir. 2011); see also Shank v.
Mitchell, 2:00-CV-17, 2013 WL 3208554 (S.D. Ohio June 24,
2013) (concluding that petitioner's claims properly sound in habeas
corpus); but see Treesh v. Robinson, 1:12cv2322, 2012 WL
5617072 (N.D. Ohio Nov. 15, 2012) (finding claims not
cognizable in habeas). This Court has also recognized that “[t]he
Sixth Circuit has taken the position that the statute of limitations
governing method-of-execution challenges brought via § 1983
begins anew any time Ohio adopts a new written protocol.” Chinn
v. Bradshaw, 3:02-CV-512, 2012 WL 2674518 (S.D. Ohio 2012)
(citing Cooey v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010)).
This Court has applied this reasoning to method-of-execution
challenges brought in habeas. Id. Here, Petitioner claims that his
claims could not have been raised previously because Ohio
adopted its latest written execution policy on September 18, 2011.
This Court concludes that because Petitioner’s Motion to Amend
was filed on March 8, 2012, Petitioner filed his claims within the
one-year statute of limitations found at 28 U.S.C. § 2244(d)(1)(D).
(ECF No. 198, PageID 2365-66 (Sept. 13, 2013).) In the same Order, Judge Barrett dismissed all
grounds for relief in the First Amended Petition, but allowed Raglin to file a second amended
petition adding the following claims:
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.

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Id. at PageID 2367. Almost immediately, Raglin conceded these new grounds for relief were
moot and they were dismissed on that basis without objection (ECF Nos. 204, 205). In the
meantime, Raglin had sought and received a stay of consideration of his lethal injection claims
(ECF Nos. 200, 203). After much back and forth on scheduling, the Magistrate Judge on April
28, 2016, denied Mr. Raglin’s Renewed Motion for Leave to File a Third Amended Petition
without prejudice to its renewal within thirty days of the mandate in the Adams habeas litigation.
The instant Motion was filed consistent with that schedule.

Raglin’s Proposed Third Amended Petition

Raglin’s proposed Third Amended Petition contains forty-five grounds for relief as
follows:
FIRST GROUND FOR RELIEF: Walter Raglin was denied his
right to the effective assistance of counsel at the pretrial and trial
phases of his capital trial in violation of the Fifth, Sixth, Eighth,
Ninth and Fourteenth Amendments.
SECOND GROUND FOR RELIEF: Walter Raglin was denied
his right to the effective assistance of counsel at the mitigation
phase of his capital trial in violation of the Fifth, Sixth, Eighth,
Ninth and Fourteenth Amendments.
THIRD GROUND FOR RELIEF: Walter Raglin was denied his
right to the effective assistance of counsel under the Fifth, Sixth,
Eighth, Ninth and Fourteenth Amendments when his attorneys
failed to object and properly preserve numerous errors.
FOURTH GROUND FOR RELIEF: Walter Raglin was denied
his right to the effective assistance of counsel on his direct appeals
in violation of the Sixth and Fourteenth Amendments to the United
States
FIFTH GROUND FOR RELIEF: Walter Raglin’s rights under
the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United
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States Constitution were violated when the trial court admitted into
evidence at the trial phase of the capital proceedings his
inculpatory statement made to members of the Cincinnati Police
Department on January 3, 1996, because his statement was the fruit
of an illegal arrest.
SIXTH GROUND FOR RELIEF: Walter Raglin’s rights under
the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution were violated when the trial court failed to suppress
his statement made to members of the Cincinnati Police
Department on January 3, 1996, because his statement was made
during a custodial interrogation following an unfulfilled request for
counsel. Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v.
Arizona, 451U.S. 477 (1981); Minnick v. Mississippi, 489 U.S. 146
(1990).
SEVENTH GROUND FOR RELIEF: Walter Raglin’s rights
under the Fifth and Fourteenth Amendments to the United States
Constitution were violated when the trial court failed to suppress
his statement made to members of the Cincinnati Police
Department on January 3, 1996, because his statement was
involuntarily given.
EIGHTH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth, and Fourteenth Amendment Rights were
violated when the judge refused to instruct the jury at the end of
the trial phase that it could find Mr. Raglin guilty of involuntary
manslaughter, a lesser included offense of aggravated murder.
NINTH GROUND FOR RELIEF: Walter Raglin’s Fifth, Sixth,
Seventh, Eighth, and Fourteenth Amendment rights were violated
when the judge erroneously instructed the jury at the end of the
trial phase on the issues of causation, foreseeability, intent, and
purpose.
TENTH GROUND FOR RELIEF: Walter Raglin’s Fifth, Sixth,
Seventh, Eighth, and Fourteenth Amendment rights were violated
when the judge failed to properly instruct the jury at the end of the
trial phase as to the definitions for reasonable doubt, beyond a
reasonable doubt and circumstantial evidence.
ELEVENTH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth and Fourteenth Amendment rights were
violated when the judge instructed the jury at the end of the
mitigation phase that its verdict of death merely constituted a

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recommendation to the bench and that the judge would make the
final decision with respect to the imposition of the death penalty.
TWELFTH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth and Fourteenth Amendment rights were
violated when the judge failed to properly instruct the jury at the
end of the mitigation phase as to the definition of reasonable doubt.
THIRTEENTH GROUND FOR RELIEF: Walter Raglin’s
Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights
were violated when the judge instructed the jury at the end of the
mitigation phase that it should consider all the evidence admitted
during the trial phase of the proceedings with respect to its
deliberations following the mitigation phase of the trial.
FOURTEENTH GROUND FOR RELIEF: Walter Raglin’s
Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights
were violated when the judge failed to properly instruct the jury at
the end of the mitigation phase as to the definition of the mitigating
circumstances that the jury should consider during its
deliberations.
FIFTEENTH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth and Fourteenth Amendment rights were
violated when the judge instructed the jury at the end of the
mitigation phase that it could consider any other factors that are
relevant to the issue of whether it should recommend that Walter
Raglin be sentenced to death.
A. The trial court’s mitigation phase instructions violated
Raglin’s rights by permitting the jury to consider any
factor it desired in determining the appropriate penalty in
his case.
B. The trial court’s mitigation phase instructions violated
SIXTEENTH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth and Fourteenth Amendment rights were
violated when the judge instructed the jury at the end of the
mitigation phase that it could consider the killing itself as a factor
relevant to the issue of whether it should recommend that Walter
Raglin be sentenced to death and by instructing the jury that the
killing itself was an aggravating circumstance.
SEVENTEENTH GROUND FOR RELIEF: Walter Raglin’s
Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights
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were violated when the judge instructed the jury at the end of the
mitigation phase in such a manner that the jury could conclude that
it had to consider and reject a recommendation as to the imposition
of death before it could consider either life sentence option.
EIGHTEENTH GROUND FOR RELIEF: Walter Raglin’s
Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights
were violated when the judge instructed the jury at the end of the
mitigation phase that it could consider the nature and
circumstances of the offense as a mitigating factor in its
determination of whether it should recommend that Walter Raglin
be sentenced to death.
NINETEENTH GROUND FOR RELIEF: Walter Raglin’s
Firth, Sixth, Seventh, Eighth and Fourteenth Amendment rights
were violated when the judge refused to instruct the jury at the end
of the mitigation phase that it could consider Walter Raglin’s
remorse, residual doubt and cooperation with law enforcement as
mitigating factors it could consider in its determination of whether
it should recommend that Walter Raglin be sentenced to death.
TWENTIETH GROUND FOR RELIEF: Walter Raglin’s Fifth,
Sixth, Seventh, Eighth and Fourteenth Amendment rights were
violated when the judge refused to instruct the jury at the end of
the mitigation phase that it could consider the sentencing
alternative of life without parole.
TWENTY-FIRST GROUND FOR RELIEF: Walter Raglin was
denied his rights to an impartial and disinterested jury due to the
bias of Juror Tara Veesart in violation of the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution.
TWENTY-SECOND GROUND FOR RELIEF: Walter Raglin
was denied his Sixth Amendment rights because juror Tara Veesart
was influenced by occurrences from outside of the courtroom, out
of the presence of the jury and without the rights of confrontation,
cross- examination, and of counsel. These occurrences were
communicated to, and thereby prejudicially influenced, other
members of Walter Raglin’s jury in violation of his rights under
the Sixth and Fourteenth Amendment to the United States
Constitution.
TWENTY-THIRD GROUND FOR RELIEF: Walter Raglin
was denied his constitutional rights to a fair and impartial trial
under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth

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Amendments as a result of prosecutorial misconduct during both
phases of his capital proceedings.
TWENTY-FOURTH GROUND FOR RELIEF: Walter Raglin
was denied his rights in violation of the Eighth Amendment, the
due process and equal protection clauses of the Fifth and
Fourteenth Amendments and the “Fair cross section” requirement
for the Sixth Amendment to the United States Constitution because
procedures used by the Hamilton County Court of Common Pleas
and the Hamilton County Prosecutor’s office to discriminate
against African-Americans result in the imposition of the death
sentence with much greater frequency upon those who kill white
persons than those who kill African-Americans.
TWENTY-FIFTH GROUND FOR RELIEF: Walter Raglin was
denied his rights under the Due Process and Equal Protection
Clauses of the Fifth and Fourteenth Amendments and the “Fair
Cross Section” requirement of the Sixth Amendment to the United
States Constitution because the process of selecting grand jurors,
grand jury forepersons, and petit jurors in Hamilton County was
tainted in 1996 due to consideration of the factor of race in the
drawing, selection and impanelment of grand jurors and petit
jurors; and due to consideration of the factors of race and gender in
the selection of grand jury forepersons.
TWENTY-SIXTH GROUND FOR RELIEF: Walter Raglin was
denied his rights under the equal protection clause because the
prosecutors used their peremptory challenges to exclude members
from the jury based on their race.
TWENTY-SEVENTH GROUND FOR RELIEF: 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 invalid 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; and when such error was not properly addressed on
appeal.
A. The trial court improperly considered an uncharged
and unproven statutory aggravating factor in sentencing
Mr. Raglin to death.

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B. The trial court’s failure to state reasons why
aggravation outweighed mitigation.
C. The trial court failed to consider and weigh valid
mitigating factors presented by the defense.
TWENTY-EIGHTH GROUND FOR RELIEF: The State failed
to prove beyond a reasonable doubt the essential element of
purpose to kill and Mr. Raglin’s conviction is contrary to the
manifest weight of the evidence. Therefore, Walter Raglin’s death
sentence must be vacated pursuant to the Fifth, Eighth and
Fourteenth Amendments to the United States Constitution.
TWENTY-NINTH GROUND FOR RELIEF: Walter Raglin
was denied his constitutional rights to a fair trial and impartial jury
under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth
Amendments during the mitigation phase because the trial court
permitted the prosecutor to introduce irrelevant and highly
prejudicial evidence from the trial phase of the capital proceedings.
THIRTIETH GROUND FOR RELIEF: Walter Raglin was
denied his constitutional rights under the Fifth, Sixth, Seventh,
Eighth, Ninth and Fourteenth Amendments during the mitigation
phase because the trial court permitted the prosecutor to introduce
inadmissible rebuttal evidence that was unfairly prejudicial to Mr.
Raglin’s rights to a fair trial and impartial jury.
THIRTY-FIRST GROUND FOR RELIEF: Walter Raglin was
denied his constitutional rights to a fair trial and impartial jury
under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth
Amendments when the trial court overruled trial counsel’s
challenge to the state’s use of peremptory challenges under Batson
v. Kentucky
THIRTY-SECOND GROUND FOR RELIEF:·Walter Raglin’s
rights as guaranteed by the Fifth, Sixth, Seventh, Eighth, Ninth and
Fourteenth Amendments were violated when the trial court
committed multiple errors during the pretrial, trial and mitigation
phases of his capital case.
THIRTY-THIRD GROUND FOR RELIEF: The proportionality
review that the appellate courts must conduct pursuant to Ohio
Revised Code §2929.05 is fatally flawed. Therefore, Walter
Raglin’s death sentence must be vacated pursuant to the Fifth,
Eighth and Fourteenth Amendments to the United States
Constitution.
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THIRTY-FOURTH GROUND FOR RELIEF: Walter Raglin’s
death sentence is constitutionally infirm because Ohio’s capital
punishment system operates in an arbitrary, capricious and
discriminatory manner in violation of the Fifth, Sixth, Eighth and
Fourteenth Amendments. Additionally, Walter Raglin’s death
sentence is constitutionally infirm because within Hamilton
County, Ohio, the death penalty is selectively imposed, rendering
the penalty as applied in Hamilton County, arbitrary and capricious
on the one hand and the product of racial discrimination on the
other.
THIRTY-FIFTH GROUND FOR RELIEF: Walter Raglin’s
death sentence is constitutionally infirm because the amendments
to the Ohio Revised Code enacted by the Ohio General Assembly
to facilitate the changes in the Ohio Constitution governing capital
cases, violates the rights of capital defendants in general and
Raglin, in particular, under the Fifth, Sixth, Eighth and Fourteenth
Amendments.
THIRTY-SIXTH GROUND FOR RELIEF: Walter Raglin’s
conviction and death sentence are invalid under the federal
constitutional guarantees of due process, equal protection, the
effective assistance of counsel, and a reliable sentence due to the
cumulative errors in the admission of evidence and instructions,
and gross misconduct of state officials in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
THIRTY-SEVENTH GROUND FOR RELIEF: Brady claim
THIRTY-EIGHTH GROUND FOR RELIEF: Giglio claim.
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.
FORTY-FIRST GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Raglin because the only manner
available under the law to execute him violates his Eighth
Amendment rights.

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A. Any drug DRC can procure to use to execute Raglin
via lethal injection has a substantial, objectively
intolerable risk of causing unnecessary, severe pain,
suffering, degradation, humiliation, and/or disgrace in
violation of the Eighth Amendment, and Ohio has no
other manner of execution available to execute Raglin that
complies with the Constitution.
B. Any drug DRC can procure to use to execute Raglin
via lethal injection poses an objectively intolerable risk of
causing a lingering and/or undignified death in violation
of the Eighth Amendment, and Ohio has no other manner
of execution available to execute Raglin that complies
with the Constitution.
C. The lack of legally obtainable, effective drugs to
conduct Raglin’s lethal-injection execution, and the
reality that Ohio has no other manner of execution
available to execute Raglin that complies with the
Constitution, will cause Raglin psychological torture, pain
and suffering in violation of the Eighth Amendment.
D. The unavoidable variations inherent in Ohio’s lethalinjection system and DRC’s continued and consistent
inability to properly administer its execution protocols
present a substantial, objectively intolerable risk of
serious harm to Raglin in violation of the Eighth
Amendment, and Ohio has no other manner of execution
available to execute Raglin that complies with the
Constitution.
E. Raglin’s unique, individual physical and/or mental
characteristics will cause any execution by lethal injection
under Ohio law to violate the Eighth Amendment, and
Ohio has no other manner of execution available to
execute Raglin that complies with the Constitution.
FORTY-SECOND GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Raglin because the only manner
available for execution violates the Due Process Clause or the
Privileges or Immunities Clause of the Fourteenth Amendment.
A. Execution by lethal injection under Ohio law will deny
Raglin’s interests in expecting and receiving a quick and
painless death in violation of the Due Process Clause of
the Fourteenth Amendment, and Ohio has no other
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manner of execution available to execute Raglin that
complies with the Constitution.
B. Execution by lethal injection under Ohio law will deny
Raglin’s interests in expecting and receiving a humane
and dignified death in violation of the Due Process Clause
of the Fourteenth Amendment, and Ohio has no other
manner of execution available to execute Raglin that
complies with the Constitution.
C. Raglin’s execution by lethal-injection under Ohio law
will be a human experiment on a non-consenting prisoner
in violation of the Due Process or Privileges or
Immunities Clauses of the Fourteenth Amendment, and
Ohio has no other manner of execution available to
execute Raglin that complies with the Constitution.
.
FORTY-THIRD GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Raglin because the only manner of
execution available for execution under Ohio law violates the
Equal Protection Clause of the Fourteenth Amendment.
A. Equal Protection – Fundamental Rights
1.
Underlying constitutional violations in
Ohio’s lethal-injection system substantially burden
Raglin’s fundamental rights, and Ohio has no other
manner of execution available to execute Raglin
that complies with the Constitution.
2.
Consistent and/or unavoidable variation
inherent in Ohio’s lethal-injection system
substantially burdens Raglin’s fundamental rights,
and Ohio has no other manner of execution
available to execute Raglin that comply with the
Constitution.
B. Equal Protection
Treatment.

–

“Class-of-One”

Disparate

FORTY-FOURTH GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Raglin because Ohio’s violations
of federal law constitute a fundamental defect in the execution
process, and the only manner of execution available for execution
depends on state execution laws that are preempted by federal law.

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A. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the CSA)
of those drugs violate the CSA.
1.
The Ohio lethal-injection statute and DRC’s
execution protocols, as written and as implemented,
purport to permit DRC to obtain controlled
substances used in executions without a valid
prescription, in violation of the CSA and DEA
regulations.
2.
The Ohio lethal-injection statute and DRC’s
execution protocols, as written and as implemented,
purport to authorize DRC, Central Pharmacy, and
Southern Ohio Correctional Facility to provide
controlled substances to Drug Administrators in
contravention of the CSA and DEA regulations.
3.
DRC’s execution protocols and the Ohio
execution statute are preempted by the federal CSA.
B. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the
FDCA) of those drugs contravene the FDCA because
those drugs used in an execution are unapproved drugs
and/or misbranded drugs and/or constitute unapproved
Investigational New Drugs.
1.
Drugs that are considered Schedule I drugs
can never be used as execution drugs in compliance
with FDCA and/or the CSA.
2.
Thiopental sodium can never be used as an
execution drug in compliance with the FDCA.
3.
No drug can ever be lawfully used to carry
out a lethal-injection human execution because no
drug has ever been approved by FDA for the
specific purpose of causing death from lethal
injection during a human execution or for the
purpose of causing a quick and painless death in a
human execution.

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4.
DRC’s use of unapproved new drugs in a
lethal- injection execution contravenes federal law
because it is not subject to an Investigational New
Drug Application.
5.
DRC’s execution protocols and the Ohio
execution statute are preempted by the federal
FDCA.
C. DRC’s actions in obtaining compounded controlled
substances for use as execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administrations (and any other terms of art under the CSA
or FDCA) of those drugs violate federal law.
1.
DRC’s actions in obtaining compounded
execution drugs, its procurement, obtaining,
importing, purchasing, dispensing, distributing,
possessing and/or administration (and any other
terms of art under the CSA or FDCA) of those
drugs violates federal law because compounding
drugs for use in an execution violates 21 U.S.C. §
353a and/or § 353b.
2.
DRC’s actions in obtaining compounded
execution drugs, its procuring, obtaining, importing,
purchasing, dispensing, distributing, possessing
and/or administering (and any other terms of art
under the CSA or FDCA) of compounded
controlled substances violate various other
provisions of the federal drug laws.
3.
DRC’s execution protocols and the Ohio
execution statute are preempted by federal law.
D. The violations of federal statutory law committed by
the State of Ohio will amount to a fundamental defect in
the execution process warranting habeas corpus relief.
FORTY-FIFTH GROUND FOR RELIEF: Walter Raglin’s
Sixth Amendment Right To Trial By Jury Was Violated When The
Trial Court, In Its Decision To Impose The Death Penalty,
Improperly Considered And Weighed An Invalid Aggravating
Circumstance And When The Appellate Court Reweighed The
Aggravating Circumstances And Mitigating Factors And Imposed

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A Sentence Of Death After Its Own Factual Findings That Were
Necessary To Make Raglin Eligible For The Death Penalty.
(ECF No. 272-1.)
In support of his Renewed Motion, Raglin purports to
fully incorporate[s] his Renewed Motion For Leave To File His
Third Amended and Supplemental Petition (ECF No. 247), his
Supplemental Memorandum in Support of that motion (ECF No.
256), and the additional arguments he offered in Exhibit 1 to his
motion for leave to file a reply regarding his supplemental
memorandum (ECF No. 259-1, PageID 3580–84).

(ECF No. 272, PageID 3675.) As this Court has recently written regarding a similar attempted
incorporation by reference, “[n]othing in the Local Rules of this Court or the Federal Rules of
Civil Procedure authorizes a party to compel this Court to review again hundreds of pages of
dense argument made earlier in the case in different litigation contexts and the Court refuses to
do so.” Smith v. Pineda, 2017 U.S. Dist. LEXIS 50346, *1 (S.D. Ohio Apr. 3, 2017). That same
refusal applies here.
Raglin’s Renewed Motion focuses principally on the cognizability of his lethal injection
claims in habeas corpus in light of Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016)(Adams III).
He asserts that it is not the same as an attack on the current lethal injection protocol such as
might be made in an action under 42 U.S.C. § 1983 because it “attacks the validity of Raglin’s
death sentence judgment. . .” (ECF No. 272, PageID 3676). Nonetheless, it “will necessarily
encompass the facts relevant to what the State intends to do under the current execution protocol.
. .” Id. Raglin notes that Ohio adopted a new protocol October 7, 2016, and asserts “[t]he current
protocol gives rise to new claims arising from differences between it and the superseded protocol
underlying Raglin’s prior claims, as well as making Raglin’s prior claims newly ripe in
accordance with the new protocol.” Id. at PageID 3677. Conversely, Raglin says, his claims are
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not so broad as to be claims that lethal injection is per se unconstitutional. Id. at 3678. Finally,
he notes that his claims will include his own health characteristics, showing why lethal injection
is unconstitutional as applied to him. Id. at PageID 3679.
His habeas corpus lethal injection claims are different from possible § 1983 claims,
Raglin asserts, because success in a civil rights case would only relate to a particular method of
lethal injunction and would not declare his death sentence unconstitutional and therefore invalid,
relief which can only be obtained in habeas corpus. Id. at PageID 3681.
Raglin concludes 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. 272, PageID 3684.)
The Warden opposes amendment on the grounds the amendment is untimely under the
AEDPA statute of limitations and futility because the proposed grounds for relief are not
cognizable in habeas corpus (Opposition, ECF No. 273, PageID 3924). Respondent notes how
tightly tied Raglin’s claims are to the current (October 7, 2016) protocol, how they plainly
depend on facts not found in the state court record, and how Raglin did not explain what “clearly
established federal law” they violate. Id. at PageID 3926. Respondent takes issue with the notion
that a successful challenge to lethal injection could invalidate an Ohio death sentence because
Ohio’s capital sentencing scheme contemplates a legislative change if lethal injection is found
unconstitutional. Id., citing Ohio Revised Code § 2949.22(C). The Warden reminds the Court
that general challenges to lethal injection have been found meritless by the Supreme Court. Id. at
PageID 3927, citing Baze v. Rees, 553 U.S. 35, 47 (2008), and Glossip v. Gross, 135 S.Ct. 2726
(2015).

Finally the Warden argues that the requirement to plead and prove an available

alternative method of execution, which the Supreme Court endorsed in the § 1983 context in

15

Baze and Glossip, applies to habeas Eighth Amendment claims as well. Id. at PageID 3928.
Raglin’s Reply argues at some length how his habeas lethal injection claims fit into the
window recognized by Adams III -- not so broad as to be per se challenges, not so narrow as to
challenge only a particular protocol (Reply, ECF No. 274, PageID 3932-45). He relies on Adams
III, but also In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported
Order; copy at ECF No. 274-1, PageID 3961, et seq.)

Analysis

Walter Raglin is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv1016. That case seeks to permanently enjoin Ohio from executing Raglin and most other Ohio
death row inmates under the current lethal injection protocol, which was adopted October 7,
2016. That protocol has already been the subject of extensive litigation, resulting in an order
preliminarily enjoining its intended use in the executions of Ronald Phillips, Raymond Tibbetts,
and Gary Otte. In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S. Dist.
LEXIS 11019 (S.D. Ohio Jan 26, 2017), aff’d., ___ F.3d ___, 2017 U.S. App. LEXIS 5946 (6th
Cir. Apr. 6, 2017).
A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages
over a habeas corpus action. Among other things, it is not subject to the second-or-successive
limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of
focused on what happened in the state courts, it is not limited in the introduction of evidence
imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011). On
the other hand, introduction of evidence discovered in a § 1983 lethal injection case appears to
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be admissible in a habeas corpus lethal injection case, per Adams III, where that conclusion is
assumed without any discussion of Pinholster.
Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA")
vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district
court could not grant release from confinement in a § 1983 action; to do so would frustrate the
habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973) (Notably, Justice
Brennan, the major architect of expansion of habeas in the 1960’s, dissented.) It was in Nelson
v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of
execution claim could be brought in a § 1983 case, over the objection of state officials who
insisted that such a claim had to be brought in habeas corpus and would, in Nelson’s case, have
been subject to the second-or-successive requirement imposed by the AEDPA. The Court
unanimously concluded that, because Nelson’s challenge to the method of execution (a vein cutdown procedure) did not challenge his actual death sentence, it could be brought in a § 1983
action.
Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of
Case No. 2:11-cv-1016, was filed December 8, 2004, and references an earlier filing in Case No.
2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in
2:11-cv-1016, Cooey remains pending.

The same organizations of attorneys who provide

representation to plaintiffs in 2:11-cv-1016 – the Capital Habeas Units of the Offices of the
Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public
Defender’s Office – also represent most of the capital habeas corpus petitioners in this Court.
Thus the litigation context provides maximal opportunities for coordination of strategy. To this
Court’s eye, those opportunities are never missed; if there are internal disagreements among the

17

capital petitioners’ bar, they are not apparent to this Court.
Petitioners’ bar has had an apparent strategy for some years to have parallel habeas and §
1983 actions pending simultaneously on behalf of the same inmate and raising substantively
parallel claims. Implementation of this strategy has been supported by the series of decisions of
the Sixth Circuit in Stanley Adams’ habeas corpus case from the Northern District of Ohio,
Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6th
Cir. March 15, 2016); and Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), referred to
herein as Adams I, Adams II, and Adams III respectively.
In Adams I the circuit court held, over Ohio’s objection, that a challenge to the method of
lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say,
availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of
action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add
lethal injection claims and indeed treated those claims as newly arising whenever Ohio’s lethal
injection protocol was amended. This reading informed the Magistrate Judge’s allowance of the
Second Amended Petition as upheld by Judge Barrett, supra, at pages 2-3.
Then the Supreme Court appeared to call this Court’s practice into question with its
decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze [v. Rees, 533 U.S.
35 (2008)] decision in Hill v. McDonough, 547 U. S. 573, 126 S.
Ct. 2096, 165 L. Ed. 2d 44 (2006), but they misread that decision.
The portion of the opinion in Hill on which they rely concerned a
question of civil procedure, not a substantive Eighth Amendment
question. In Hill, the issue was whether a challenge to a method of
execution must be brought by means of an application for a writ of
habeas corpus or a civil action under §1983. Id., at 576, 126 S. Ct.
2096, 165 L. Ed. 2d 44. We held that a method-of-execution
claim must be brought under §1983 because such a claim does

18

not attack the validity of the prisoner’s conviction or death
sentence. Id., at 579-580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.

135 S.Ct. at 2738(emphasis added).

Changing course, this Court concluded the “must be

brought” language precluded what it had been doing under Adams I. Then, in Adams II as
clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I:
Adams challenged the constitutionality of lethal injection on direct
appeal, asserting that "[d]eath by lethal injection constitutes cruel
and unusual punishment and denies due process under the state and
federal constitutions." The Ohio Supreme Court rejected this
claim, explaining it had "previously rejected similar arguments."
Adams, 817 N.E.2d at 56 (citing State v. Carter, 89 Ohio St. 3d
593, 2000 Ohio 172, 734 N.E.2d 345, 358 (Ohio 2000)). Adams
again challenged the constitutionality of execution by lethal
injection in his federal habeas corpus petition. The district court
denied this claim, noting that "lethal injection is the law of the
republic. No federal court has found the lethal injection protocol to
be unconstitutional." Adams, 484 F. Supp. 2d at 796 (citation
omitted).
As an initial matter, we note our recent holding that lethal injection
does not violate the Constitution. See Scott v. Houk, 760 F.3d 497,
512 (6th Cir. 2014) ("Simply put, lethal injection does not violate
the Constitution per se . . . ."). In Scott, a similar challenge to the
implementation of lethal injection was raised, as a panel of this
court observed that "Scott's petition alleges that lethal injection
'inflicts torturous, gratuitous and inhumane pain, suffering and
anguish upon the person executed.'" Id. at 511. Accordingly, the
Ohio Supreme Court's denial of Adams's challenge to the
constitutionality of lethal injection as a means of execution did not
constitute an unreasonable application of Supreme Court
precedent.
The Supreme Court's decision in Glossip does not alter our
precedent. Glossip concerned a 42 U.S.C. § 1983 action
challenging Oklahoma's execution protocol. . . .
Lastly, notwithstanding the warden's observation that a method-ofexecution challenge can only be brought in a § 1983 action under
Hill v. McDonough, 547 U.S. 573 (2006), Adams can bring this
claim in a § 2254 proceeding. As the warden submits, Glossip
stated that Hill "held that a method-of-execution claim must be
19

brought under § 1983 because such a claim does not attack the
validity of the prisoner's conviction or death sentence." Glossip,
135 S. Ct. at 2738. As we observed in Adams, 644 F.3d at 483,
however, Adams's case is distinguishable from Hill because
Adams argues that lethal injection cannot be administered in a
constitutional manner, and his claim "could render his death
sentence effectively invalid." Cf. Hill, 547 U.S. at 580. Our
decision in Adams is consistent with the Supreme Court's
reasoning in Nelson, which suggested that, under a statutory
regime similar to Ohio's, "a constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself." 541 U.S. at 644. Thus,
to the extent that Adams challenges the constitutionality of lethal
injection in general and not a particular lethal-injection protocol,
his claim is cognizable in habeas. Adams, 644 F.3d at 483.
However, as the Supreme Court observed in Glossip, a challenge
to a particular procedure that concedes the possibility of an
acceptable alternative procedure is properly brought in a § 1983
action. Glossip, 135 S. Ct. at 2738.
Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th Cir. 2016), cert den. sub nom. Adams v. Jenkins,
137 S. Ct. 814, 196 L. Ed. 2d 602 (2017). By denying certiorari, the Supreme Court passed up a
chance to clarify the meaning of Glossip. Denial of certiorari triggered issuance of the mandate
which then set the deadline for the instant Renewed Motion.
As this Magistrate Judge understands it, the current state of the law in the Sixth Circuit
after Adams III is that habeas corpus will lie to challenge “the constitutionality of lethal injection
in general” to wit, that “lethal injection cannot be administered in a constitutional manner, and
[that] claim ‘could render his death sentence effectively invalid.’” Adams III, quoting Hill v.
McDonough, 547 U.S. at 580. Although the Adams court did not say so explicitly, it is obvious
the same claim can also be made in a § 1983 action seeking permanent injunctive relief. Indeed
Stanley Adams has done so and is a plaintiff in In re: Ohio Execution Protocol Litig., Case No.
2:11-cv-1016. Of course as a § 1983 plaintiff, a death row inmate must plead a constitutional
alternative method of execution. Glossip, supra.

20

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):
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. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
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); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio
2013)(Rose, J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794,
*28 (S.D. Ohio March 31, 2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1
(Ovington, M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112

21

(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”). 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). These considerations apply as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d
320, 341 (6th Cir. 1998), quoting Brooks.
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within a
Magistrate Judge’s decisional authority. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist.
LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.)
To apply this standard to the pending Motion requires distinguishing among the forty-five
proposed claims.

Grounds One to Thirty-Eight

Grounds for Relief One through Thirty-Eight appear to parallel the grounds for relief pled
in the First Amended Petition. All of those Grounds for Relief have already been adjudicated by
this Court or abandoned by the Petitioner. The Court assumes that those Grounds for Relief are
proposed to be repeated in the Third Amended Petition so as to preserve the unabandoned claims
for appeal. The Court GRANTS the Renewed Motion to the extent of allowing Grounds for
Relief One through Thirty-Eight to be restated in a Third Amended Petition to preserve their
current status in the case. None of those Grounds for Relief is opened for relitigation.

22

Grounds Thirty-Nine and Forty

Proposed Ground Thirty-Nine repeats verbatim the Ninth Ground for Relief in the
Second Amended Petition (ECF No. 178, PageID 1310). Ground Forty repeats verbatim the next
Ground for Relief in the Second Amended Petition after Ground Nine, which the Court assumes
would have been numbered Tenth but for a typographical mistake. The Second Amended
Petition was filed five years ago on April 17, 2012, and asserted cognizability on the basis of
Adams I. Id. at PageID 1314. These two Grounds are recognizable “general” but not per se
attacks on lethal injection.
Petitioner makes no reference to these Grounds for Relief in his Motion except to
characterize them as “raising lethal-injection invalidity claims.” (Renewed Motion, ECF No.
272, PageID 3673.)
Raglin is GRANTED leave to include these two Grounds for Relief in his Third
Amended Petition with a notation that they have been previously withdrawn as moot.

Grounds Forty-One through Forty-Four

Proposed Grounds Forty-One through Forty-Four are also lethal injection claims.
Ground Forty-One is an Eighth Amendment claim that appears to elaborate on Ground ThirtyNine. Ground Forty-Two is a Due Process and Privileges or Immunities claim which does not
have a parallel in the Second Amended Petition. Ground Forty-Three is an Equal Protection
claim which appears to be an elaboration of the unnumbered second ground for relief in the
Second Amended Petition. Ground Forty-Four is a Supremacy Clause or pre-emption claim.

23

As proposed to be pled, these Grounds for Relief fit within the cognizability-in-habeas
window recognized in Adams III. That is to say, they are not claims that lethal injection
executions are per se unconstitutional; such a claim would be precluded by precedent. As this
Court understands the Sixth Circuit’s classification in Adams I, II, and III, a per se claim would
read something like “It is unconstitutional for any American State to execute anyone by lethal
injection.” Instead, these claims are general in the sense that they assert “It is and will always be
unconstitutional for the State of Ohio to execute Mr. Raglin by any lethal injection procedure and
because Ohio authorizes executions only by lethal injection, his death sentence is invalid.”
The Warden’s objection that these claims are not cognizable in habeas corpus is not well
taken. The Warden’s statute of limitations objection is dealt with below.

Ground Forty-Five

Ground Forty-Five is a new claim which, without saying so, appears to be based on Hurst
v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016).
As this Court has held repeatedly in other cases, claims under Hurst are not cognizable
because the Ohio capital sentencing system is materially different from the Florida system held
unconstitutional in Hurst. Moreover, even if Hurst were applicable to Ohio capital cases, it does
not apply retroactively to cases on collateral review. Campbell v. Jenkins, 2017 U.S. Dist. LEXIS
49085 (S.D. Ohio Mar. 31, 2017); Fears v, Jenkins, 2017 U.S. Dist. LEXIS 47901 (S.D. Ohio
Mar. 29, 2017); McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio Feb. 15, 2017)
and 2017 U.S. Dist. LEXIS 45633 (S.D. Ohio Mar. 27, 2017).
Raglin is DENIED leave to include Ground Forty-Five in his Third Amended Petition.

24

The Statute of Limitations

AEDPA imposed a one-year statute of limitations on habeas corpus claims. 28 U.S.C. §
2244(d). The Warden raises a statute of limitations defense in very brief fashion:
Second, to the extent the proposed amended claims are construed
as a properly pled general challenge to lethal injection, the one
year statute of limitations under 28 U.S.C. § 2244(d) has long ago
expired, where the state court judgment Raglin attacks has been
final for more than a decade. Turner v. Warden, Case No. 2:07-cv595, USDCSDO, Doc. 258, Decision and Order, Page ID 1101311015 (Merz, Magistrate Judge); In re: Lawrence Landrum, Case
No. 16-3151, Sixth Circuit, Doc. 10-1 Order, filed February 13,
2017.

(Opposition, ECF No. 273, PageID 3925.) This one-paragraph defense has elicited a twelve
page reply (Reply, ECF No. 274, PageID 3947-58), the parts of which are considered separately.

The Limitations Defense has not been Forfeited

Raglin begins by asserting that the limitations defense, being non-jurisdictional, is subject
to forfeiture and claims the Warden has not sufficiently asserted such a defense, thereby
forfeiting it. Id. at PageID 3947. While the limitations defense in habeas can be forfeited, no
case authority supports the proposition that failure to raise a limitations defense in objection to a
motion to amend constitutes such a forfeiture. To put it another way, just because a defendant
can raise any available Fed. R. Civ. P. 12(b) defense in opposing a motion to amend does not
logically imply that the defendant has forfeited the defense by failing to raise it at that stage.
The statute of limitations is an affirmative defense which is forfeited if not pleaded as
25

required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on
limitations grounds when conducting an initial review under Rule 4 of the Rules Governing §
2254 Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense
even after an answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). In
Wood v. Milyard, 566 U.S. 463 (2012), the Supreme Court held that courts of appeals have
authority to consider a forfeited timeliness defense sua sponte.
Petitioner’s objection that Respondent has forfeited a limitations defense is
OVERRULED.

Newly Discovered Evidence vs. Newly Arising Claims

Next Raglin asserts the authority cited by Respondent is inapposite (Reply, ECF No. 274,
PageID 3947-48).
In In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported
Order; copy at ECF No. 274-1, PageID 3961), the Sixth Circuit held that Landrum’s proposed
lethal injection habeas claim required permission to proceed under 28 U.S.C. § 2244(b) which
the circuit court refused to give. Landrum had argued “that he could not have raised his lethalinjection challenge until after the state adopted a revised protocol on September 18, 2011.” Id. at
page 3. The circuit court rejected that argument, holding “Landrum has not identified practices
or procedures from the September 2011 protocol that amount to a factual predicate that could not
have been discovered previously. See 28 U.S.C. § 2244(b)(2)(B).”
Raglin asserts this statement implies that if a capital habeas petitioner does show
practices or procedures from the relevant amended protocol – here
the October 7, 2016 execution protocol – that could not have been
26

discovered previously, then he should not be prevented from
amending his claims, nor are his claims time-barred. And that is
precisely what he has done in his Motion and proposed Amended
and Supplemental Petition. (See, e.g., ECF No. 272-1, PageID
3739-40, 3742-49.)
(Reply, ECF No. 274, PageID 3948.) At ¶¶ 142-46 (PageID 3739-40) of his proposed third
amended petition, Raglin recites facts related to the October 7, 2016, protocol. At ¶¶ 157-79
(PageID 3742-49) Raglin makes allegations about the use of the drug midazolam as the first drug
in the alternative in the current protocol which Ohio intended to use to execute Ronald Phillips,
Raymond Tibbetts, and Gary Otte. Among those allegations are asserted problems with the use
of midazolam to execute Dennis McGuire. (Id. at ¶ 165-66), Clayton Lockett (¶¶ 167-68), and
Joseph Wood (¶¶ 169-70). Dennis McGuire was executed January 16, 2014; Clayton Lockett
was executed April 29, 2014; and Joseph Wood was executed July 23, 2014. None of these dates
are mentioned in either the Renewed Motion or the proposed third amended petition. The
relevant facts about use of midazolam in these executions were not newly discovered within one
year before March 8, 2017. They have been thoroughly vetted in the § 1983 Protocol Litigation
case.1 But that is not enough for Petitioner’s counsel who want these facts to count as newly
discovered factual predicates for his habeas lethal injection claims, thus extending the start date
for the statute of limitations under 28 U.S.C. § 2244(d)(1)(D). But wait. All of these facts had
been discovered not later than July 23, 2014.2 How can they be newly arising factual predicates
for habeas lethal injection claims made in March 2017?
Part of the difficulty with Raglin’s position is that it seems to stem from the drive of his
counsel to completely conflate habeas corpus and § 1983 procedure. But Adams and Landrum
do not do that. While those cases do support counsels’ strategy to have substantively parallel
1

Or at least thoroughly enough for a preliminary injunction hearing.
All three of these executions were widely covered in the press and thus would have come to counsels’ attention
quickly. McGuire was represented by Raglin’s counsel.

2

27

habeas and § 1983 claims pending at the same time and to use evidence obtained in the § 1983
case in support of the habeas claims,3 the Sixth Circuit has not elided the procedural differences
between these two types of cases.
If Raglin’s cognizable-in-habeas general lethal injection claims did not arise when his
attorneys discovered the facts about midazolam sometime between January 2014 and March 8,
2017, when did they arise? Raglin filed his original Petition in this case in 2000 after lethal
injection had become an approved method of execution in Ohio. In 2001 it became the exclusive
method. It was still the exclusive method in 2004 when the Supreme Court decided in Nelson v.
Campbell that method of execution claims could be brought in a § 1983 case. Although Raglin
never became a plaintiff in Cooey v. Taft, 2:04-cv-1156, counsel who represent him here were
counsel to other death row inmates in that case. He is a plaintiff in In re: Ohio Execution
Protocol Litig., and has been since November 14, 2011. The original Complaint in that case
included claims of Eighth and Fourteenth Amendment violations (First Claim), due process
violations (Second Claim), and equal protection violations (Fourth Claim).

If those

constitutional violations had arisen for § 1983 purposes by the time that Complaint was filed,
why hadn’t they also arisen for habeas corpus purposes?
Of course, the Complaint in 2:11-cv-1016 has been amended many times since 2011. It
is perfectly appropriate for forward-looking civil rights litigation to be amended as the conduct
sought to be enjoined changes.
In light of Adams III, it would apparently be appropriate for Raglin to rely on new
evidence gathered in the § 1983 litigation to prove his habeas corpus claim that Ohio can never
constitutionally execute him by lethal injection. But gathering new evidence in support of a
habeas claim is different from concluding that a new habeas claim “arises” for limitations
3

Adams III expressly says this may be done without discussing any possible impact of Pinholstrer.

28

purposes every time new evidence is discovered, even assuming due diligence in finding the new
evidence.
Raglin asserts repeatedly that Ohio’s adoption of a new lethal injection protocol starts the
statute of limitations running anew (Reply, ECF No. 274, e.g. at PageID 3950). He asserts he
“could not have raised these specific lethal-injection invalidity claims” until the new protocol
was adopted on October 7, 2016. Id. Yet he never explains how this focus on a newly arising
claim related to a specific protocol is somehow consistent with his claims’ being general Ohiocan-never-constitutionally-execute-me-by-lethal-injection claims.

The Court has readily

accepted the proposition that a new protocol can generate a new § 1983 claim, but such claims
are specific to the particular protocol. No matter how many times Raglin’s counsel repeat the
mantra, new facts are not the same as new habeas claims.

Equitable Tolling

Raglin claims the benefit of the equitable tolling doctrine, “assuming the limitations
period was not retriggered . . . by newly arising factual predicates.” (Reply, ECF No. 274,
PageID 3952.) The equitable tolling doctrine certainly applies to habeas corpus cases. Holland
v. Florida, 560 U.S. 631 (2010).4
A petitioner is “‘entitled to equitable tolling’ only if he shows ‘(1) that he has been
pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750,
193 L. Ed. 2d 652(2016); Ata v. Scutt, 662 F.3d 736 (6th Cir. 2011), quoting Holland, 130 S. Ct.
4

Counsel cite to the Supreme Court Reporter citation for Holland. S. D. Ohio Civ. R. 7.2(b)(3) states the Court’s
preference for use of the official citation. As institutional litigators in this Court, Petitioner’s counsel should honor
this preference.

29

at 2562, quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Raglin relies on a number of factors favoring equitable tolling cited in Sherwood v.
Prelesnik, 579 F.3d 581 (6th Cir, 2009). The circuit court has made it clear, however, that in the
wake of Holland, supra, the multi-factor test previously applied is no longer applicable. Ata, 662
F.3d 736 n3 (6th Cir. 2011); See also Hall v. Warden, 662 F.3d 745 (6th Cir. 2011).
Whether it fits comfortably within the equitable tolling doctrine or not, Raglin makes a
strong case that the Court should give some equitable consideration to the confused state of the
law during the time he has had cases pending in federal court. Until Adams I it was reasonable
for counsel to understand that method of execution claims had to be brought in § 1983
proceedings. Following Adams I, this Court accepted the extension of the logic of that case and
of Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), that not only did new § 1983 claims arise
whenever the protocol was amended, but so did habeas claims on the same substantive basis. On
that basis, counsel could reasonably have concluded they had a year from adoption of a new
protocol to amend a client’s habeas petition to add claims “newly arising” under that new
protocol. Although this Court has now concluded on the basis of Adams III and Landrum that
the cognizability, second-or-successive, and limitations questions must be kept separate, capital
habeas petitioners should not be penalized for following the Court’s lead during that period
between Adams I and Adams III. And the Court must take full responsibility for the delay
between the Adams III decision and issuance of the mandate in that case, although it was urged
to that position by Petitioner’s counsel. The State of Ohio has not claimed any prejudice would
result from this approach since it will have to litigate the lethal injection invalidity question in
the § 1983 case in any event.

30

Claims Still Not Ripe

The Court rejects Raglin’s alternative argument (ECF No. 274, PageID 3956-58) that his
lethal injection invalidity claims remain unripe because his health conditions or the protocol
could change and his execution is not imminent.

That logic would allow the statute of

limitations defense to be swallowed entirely by a “things may change” condition. Adams III
appears to allow a court to consider new evidence in support of a general claim that Ohio can
never constitutionally execute a particular inmate by lethal injection. It does not support the
proposition that such a claim is newly arising when relevant facts change.

Conclusion

To the extent and for the reasons set forth above, Raglin’s Renewed Motion is
GRANTED. Petitioner may, not later than April 24, 2017, file a Third Amended Petition which
shall include all of the following:
1.

As to Grounds One through Thirty-Eight, a notation of the place in the record where the

claim has been either adjudicated or abandoned;
2.

As to Grounds for Relief Thirty-Nine and Forty, a notation as to whether Raglin

considers them superseded by any later Ground for Relief;
3.

As to Ground Forty-Five, a notation that it has been disallowed by the Court but that it is

being pleaded to preserve the Hurst issue for later consideration if the law changes.
In the alternative and perhaps avoiding some confusion, Raglin may file a Supplemental
Petition including only Grounds Forty-One through Forty-Five with the same notation indicated

31

above as to Ground Forty-Five.

April 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge

32