Raglin v. Mitchell
DECISION AND ORDER VACATING PRIOR DECISION AND DENYING MOTION TO AMEND - All of Petitioner's proposed claims which would have reopened for further adjudication under this Courts prior order are now rejected. The Court should enter final judg ment based on its decision of September 29, 2013. Denial of leave to add lethal injection invalidity claims should be without prejudice to Raglin's pursuing them in In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016, where he is a plaintiff. Signed by Magistrate Judge Michael R. Merz on 11/13/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
Case No. 1:00-cv-767
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
-vsBETTY MITCHELL, Warden,
DECISION AND ORDER VACATING PRIOR DECISION AND
DENYING MOTION TO AMEND
This capital habeas corpus case is before the Court sua sponte to correct an order pending
on objections before District Judge Barrett. In light of the Sixth Circuit’s decision in In re
Campbell, ___ F.3d ___, 2017 U.S. App. LEXIS 21094 (6th Cir. Oct. 25, 2017), the Magistrate
Judge’s prior Decision and Order allowing Mr. Raglin to file a Third Amended Petition pleading
lethal injection invalidity claims (ECF No. 275) is clearly mistaken as a matter of law and is
hereby VACATED. The following is substituted in its place.
On September 29, 2013, District Judge Barrett dismissed all Grounds for Relief in
Petitioner Raglin’s First Amended Petition and ordered him to file his Second Amended Petition
within fourteen days, limited to two lethal injection invalidity claims (ECF No. 198). Raglin did
not file at that time, but sought a stay in light of Ohio’s adoption of a new lethal injection
protocol “due to the need to amend his habeas petition to plead his newly-ripe lethal-injection
claims.” (ECF No. 200, PageID 2373). Dennis McGuire was executed on January 16, 2014.
While the implications of that execution were considered by all parties, Raglin’s date to move to
amend was repeatedly extended to March 17, 2014 (ECF No. 203), June 11, 2014 (ECF No.
206), June 27, 2014 (ECF No. 208), October 2, 2014 (ECF No. 209), April 13, 2015 (ECF No.
227), July 1, 2015 (ECF No. 237), October 5, 2015 (ECF No. 243), November 4, 2015 (ECF No.
245), April 1, 2016 (ECF No. 253), and finally to thirty days after issuance of the mandate in
Adams v. Bradshaw (ECF No. 260). The relevant Motion to Amend (ECF No. 272) was granted
April 10, 2017 (ECF No. 275), but the obligation of Petitioner to actually file his Third Amended
Petition was stayed until after the Warden’s objections to amendment would be resolved by
Judge Barrett (ECF No. 278).
In the Decision now vacated, the Magistrate Judge recited the history of this Court’s
treatment of lethal-injection-invalidity claims in habeas corpus which was based on its reading of
the set of decisions by 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 Sixth Circuit held, over Ohio’s objection, that a challenge to a method of
execution could be brought in habeas corpus as well as in an action under 42 U.S.C. § 1983.
This Court followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S.Ct. 2726
(2015). In Glossip, Justice Alito interpreted Hill v. McDonough, 547 U.S. 573 (2006), as holding
“a method of execution claim must be brought under § 1983 . . . .” 135 S.Ct. at 2738.
After Glossip, this Court reversed course. Judge Frost put it succinctly: “This Court and
other courts within this District have since relied on Adams in accepting the proposition that
method-of-execution claims properly sound in habeas corpus. Glossip now undeniably upends
that practice.” Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015).
Then, in March 2016, came Adams II in which the Sixth Circuit held that “The Supreme
Court’s decision in Glossip does not alter our precedent.” 817 F.3d at 297. The State sought
“clarification” of Adams II and the Sixth Circuit published Adams III in June 2016, again
recognizing a category of lethal-injection-invalidity claims which could be brought in habeas.
Offered a chance to clarify what it had meant in Glossip, the Supreme Court denied certiorari in
Adams III. Adams v. Jenkins, 137 S.Ct. 814, 196 L. Ed. 2d 602 (2017). After certiorari was
denied, the Sixth Circuit issued its mandate in Adams III and this Court understood it was back
where it had been under Adams I in 2011, to wit, that there was a class of lethal injection
invalidity claims which, if successful, would render a particular petitioner’s death sentence
invalid. It was on that reading of Adams III that the Magistrate Judge granted in part the instant
Motion to Amend (ECF No. 275, PageID 3993).
Campbell again changes the analysis. Interpreting Glossip, the circuit court held:
Glossip therefore closed the hypothetical door left open by Nelson,
Hill, and Adams II. No longer can a method-of-execution claim
impair a death sentence itself. And since a method-of-execution
claim can no longer "attack the validity of the prisoner's conviction
or death sentence," a habeas court cannot act upon it. Id. at 2738.
Thus, the Glossip Court necessarily barred all habeas petitions
challenging "a particular application of a particular protocol to a
particular person" as unconstitutionally painful. In re Tibbetts, 869
F.3d 403, 406 (6th Cir. 2017). These challenges are properly
remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
Campbell, 2017 U.S. App. LEXIS 21094 at *11-12 (emphasis in original). The Campbell court
noted the language in Adams III on which capital petitioners and this Court have relied to justify
pleading lethal-injection-invalidity claims in habeas and declared that language to be nonbinding dictum. Id. at *15. It
[T]o the extent that Adams III purported to permit Baze-style
habeas claims that refuse to concede the possibility of an
acceptable means of execution, it is not controlling. Since
Glossip's holding directly addressed that question, it is binding on
us, and we follow it today. In doing so, we do not intend to
diminish the importance or correctness of the holding in Adams II
that § 1983 and habeas are not mutually exclusive as a per se rule.
All Baze and Glossip require is that— in the peculiar context of
method-of-execution claims—the death-row inmate must proceed
under § 1983.
Campbell, supra, at *15.
In allowing amendment to add lethal injection invalidity claims, this Court was
attempting to follow Adams III faithfully. Because Adams III was written to clarify Adams II at
the request of one of the parties, this Court assumes the added language in Adams III was
carefully chosen. Moore’s Federal Practice notes, however, that “it is not always clear what the
holding is in a particular case” because “[h]oldings may be given broad or narrow
interpretations.” 18 James Wm. Moore et al., Moore’s Federal Practice §134.03 (3d ed.
1999). Even language that is dictum may be carefully chosen. In any event, if the relevant
language in Adams III does not, per Campbell, bind subsequent Sixth Circuit panels, it does not
bind this Court. Campbell does, particularly because it interprets the language the Supreme
Court used in Glossip: “a method-of-execution claim must be brought under §1983.” Raglin’s
Motion to Amend (ECF No. 272) to the extent it seeks to add lethal-injection-invalidity claims is
DENIED because those claims are not cognizable in habeas corpus. Therefore the amendment
would be futile because it could not withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
See Foman v. Davis, 371 U.S. 178 (1962).1
In part the prior Decision and Order denied leave to amend to add Ground Forty-Five, a
claim based on Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016)(ECF No. 275, PageID
3997, citing 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)). This Court’s view that Hurst does not apply retroactively has now
been endorsed by the Sixth Circuit. In re Coley, 871 F.3d 455 (6th Cir. 2017).
The Motion to add a claim under Hurst is therefore also DENIED.
All of Petitioner’s proposed claims which would have reopened for further adjudication
under this Court’s prior order are now rejected. The Court should enter final judgment based on
its decision of September 29, 2013. Denial of leave to add lethal injection invalidity claims
should be without prejudice to Raglin’s pursuing them in In re Ohio Execution Protocol Litig.,
In a Notice of Supplemental Authority, Petitioner has called the Court’s attention to Davis v.
Jenkins, No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 161152 (S.D. Ohio Sep. 29, 2017) where the
Court allowed lethal injection invalidity claims despite In re Tibbetts, 869 F.3d 403 (6th Cir.
2017). But Davis was decided before Campbell was handed down.
Case No. 2:11-cv-1016, where he is a plaintiff.
November 13, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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