Raglin v. Mitchell
Filing
292
SUPPLEMENTAL OPINION ON MOTION TO AMEND- Conclusion: Having reconsidered the matter as directed in the Recommittal Order, the Magistrate Judge remains of the opinion that Raglin should be denied permission to add his proposed Grounds for Relief 41, 42, 43, 44, and 45. Signed by Magistrate Judge Michael R. Merz on 12/29/17. (kma)
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.
SUPPLEMENTAL OPINION ON MOTION TO AMEND
This capital habeas corpus case is before the Court on Petitioner’s Appeal (ECF No. 289)
of the Magistrate Judge’s Decision Denying Petitioner’s Motion to Amend (ECF No. 287). The
Warden has responded to the Appeal (ECF No. 291) and District Judge Barrett has recommitted
the matter for a supplemental opinion (ECF No. 290).
Petitioner agrees that a motion to amend is non-dispositive under 28 U.S.C. § 636(b) and
therefore it was proper for the Magistrate Judge to decide the motion rather than recommending
a decision (Appeal, ECF No. 289, PageID 4115). Raglin notes that all of his objections involve
questions of law on which the Magistrate Judge’s Decision is to be reviewed de novo. Id. at
PageID 4116 and the Magistrate Judge agrees.
1
The Impact of In re: Campbell
The Decision appealed from concluded that In re Campbell, 874 F.3d 454 (6th Cir. 2017),
cert. den. sub nom. Campbell v. Jenkins, 199 L. Ed. 2d 350 (2017), requires this Court to cease
its practice of allowing lethal injection invalidity claims to be pleaded in habeas corpus cases.
Rather, the Campbell court, applying the Supreme Court’s decision in Glossip v. Gross, 135 S.
Ct. 2726 (2015), concluded those claims can only be brought in an action for injunctive relief
under 42 U.S.C. § 1983. Raglin himself is a plaintiff in just such a case, In re Lethal Injection
Protocol Litig., 2:11-cv-1016 (the “Protocol Case”), with most other Ohio death row inmates.
They seek injunctive relief in that case on constitutional bases parallel to those in the lethal
injection invalidity claims he seeks to add here. (Compare Proposed Grounds in ECF No. 272-1
with the Fourth Amended Omnibus Complaint in the Protocol Case, ECF No. 1252.)
Raglin first objects (Appeal, ECF No. 289, PageID 4116) that Campbell cannot be
followed here because “Campbell is in conflict with the earlier binding precedent Adams v.
Bradshaw, 826 F.3d 306 (6th Cir. 2016) (“Adams III”), and Adams v. Bradshaw, 644 F.3d 481
(6th Cir. 2011) (“Adams I”).”
What remedy does a death-sentenced inmate have for an unconstitutional method of
execution – habeas corpus, 42 U.S.C. § 1983, or both?
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).
2
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 because to do so would
frustrate the habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). 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 28 U.S.C. § 2244(b). The
Court unanimously concluded that, because Nelson’s challenge to the method of execution (a
vein cut-down 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
the Protocol Case, was filed December 8, 2004, and references an even earlier filing in Case No.
2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in
the Protocol Case, Cooey remains pending. The same organizations of attorneys who provide
representation to plaintiffs in that case – 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 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
3
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.
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
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. As Judge Frost put it
“Glossip now undeniably upends that practice.” Henderson v. Warden, 136 F. Supp. 3d 847, 851
(S.D. Ohio 2015).
4
Then, in Adams II as clarified by Adams III, the Sixth Circuit decided Glossip did not
implicitly overrule Adams I. 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. This Court then changed
course again and began allowing lethal injection invalidity claims in habeas. It was on that basis
that the Magistrate Judge granted leave to amend in April 2017.
But on October 25, 2017, the Sixth Circuit decided Campbell.
Based on the history just recited, the Magistrate Judge wholeheartedly agrees with Raglin
that Campbell conflicts Adams I and Adams III, both of which are published decisions of Sixth
Circuit panels that pre-date Campbell. The Campbell panel dealt with that conflict directly.
Notwithstanding the procedural default [that the Adams panel
found barred merits relief], the panel proceeded to speculate in
dicta about the viability of a psychological-torment claim. Adams
III, 826 F.3d at 320. It ultimately found the claim unsupported by
the substantive law. Even then, the panel proceeded to discuss—
again in dicta—the holding of Adams II in light of Glossip. Id. at
321. It reiterated that "Adams's case is distinguishable from Hill
because Adams argues that lethal injection cannot be administered
in a constitutional manner, and that his claim 'could render his
death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547
U.S. at 580). Therefore, "to the extent that [a petitioner]
challenges the constitutionality of lethal injection in general and
not a lethal-injection protocol, his claim is cognizable in habeas."
Id.
We think this dictum mischaracterizes both Adams II and Glossip.
And, of course, dictum in a prior decision—as opposed to a
holding—does not bind future panels, including this one. 6th Cir.
R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir.
2010) (explaining that statements which are "not necessary to the
outcome" are not binding on later panels). The Adams III panel had
already concluded that the petitioner's claim was both procedurally
defaulted and forfeited. Adams III, 826 F.3d at 320. And although
we may choose to excuse forfeiture in an exceptional case, we
cannot ignore procedural default absent an express finding of cause
and prejudice. Wainwright, 433 U.S. at 86-87. Thus, the statements
5
"necessary" to the decision in Adams III ended when the panel
acknowledged the default and forfeiture without any indication that
an exception was present. Adams III, 826 F.3d at 320.
Thus, to 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-ofexecution claims—the death-row inmate must proceed under §
1983.
874 F.3d at 463-64. In sum, the Campbell panel held that the language in Adams I and Adams III
on which this Court had relied was dictum and therefore not binding on future panels of the Sixth
Circuit and, a fortiori, not binding on the District Courts.
Raglin objects that, in Davis v. Jenkins, No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 161152
(S.D. Ohio Oct. 2, 2017), Chief Judge Sargus wrote “Adams III is binding on this Court.”
(Appeal, ECF No. 289, PageID 4117). As this Magistrate Judge noted in the Decision, Davis
was filed three weeks before Campbell where a panel of the Sixth Circuit held that Adams III
was not binding.
Raglin argues that his “claims remain cognizable under Adams III until the en banc Sixth
Circuit or the United States Supreme Court says otherwise.” (Appeal, ECF No. 289, PageID
4117). That is true only if the Adams III language this Court had been relying on was a holding
of the Sixth Circuit. It is indeed well established that a later panel of the circuit court cannot
overrule the holding of a prior panel. See, e.g., United States v. Elbe, 774 F.3d 885, 891 (6th Cir.
2014); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001); Salmi v. Secretary of HHS,
774 F.2d 685, 689 (6th Cir. 1985). But Raglin cites no precedent for the proposition that a later
6
panel cannot authoritatively determine that language used by a prior panel was dictum. That is
precisely what the Campbell panel did. And the Supreme Court passed up an opportunity to
declare that wrong when it denied certiorari in Campbell just as it had passed up an opportunity
to decide if Adams III correctly interpreted Glossip when it denied certiorari in Adams III.
Raglin next objects that “the language from Glossip v. Gross, 135 S. Ct. 2726 (2015), that
the Campbell majority relied on was dicta . . . .” Whether or not that is so from an academic
perspective, the Sixth Circuit en banc has treated Glossip as binding in more than its precise
holding. In reversing this Court’s grant of preliminary injunctive relief in Fears v. Morgan (In
re: Ohio Execution Protocol), 860 F.3d 881 (6th Cir. Jun 28, 2017), Judge Kethledge wrote for
the court: “[N]either, as plaintiffs suggest, is Glossip irrelevant here. Quite the contrary: the
Court's opinion contains plenty of reasoning that was not confined to the record there—and
which therefore binds us just as much as the reasoning in any other opinion of the Supreme
Court.” Id. at 886. If the Sixth Circuit finds language in a Supreme Court opinion to be binding
– holding or dictum – that conclusion is binding on us.
Raglin objects that his claims were cognizable under Adams I (PageID 4117). Yes, but
Adams I is flatly contradicted by Campbell and by Glossip as the Campbell majority reads it.
Finally, Raglin objects that “the Campbell majority’s reading of Glossip was also highly
questionable.” Id., citing Judge Moore’s dissent from denial of a stay of execution. In re
Campbell, 2017 U.S. App. LEXIS 22575 (Nov. 9, 2017). That was an argument to be made on
appeal1, and not to a trial court which is obliged to follow the majority’s reading of Glossip.
Raglin asserts that a ruling under § 2244(b) declining permission to proceed on a secondor-successive habeas application is “not a decision on the merits of the underlying claim.”
1
Presumably it was made by Alva Campbell in seeking certiorari. Of course, denial of certiorari tells us nothing
about what the Supreme Court may think on the merits of that point.
7
(Appeal, ECF No. 289, PageID 4117). He cites several cases from other jurisdictions supporting
the same proposition. id at PageID 4118. While that is accurate, it is beside the point. What the
Campbell court decided was that the “underlying merits” of Raglin’s constitutional claims could
not be reached in a habeas corpus case.
Raglin’s “Statutory” Claim
Raglijn’s Proposed Forty-Fourth Ground for Relief reads:
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.
(ECF No. 272-1, PageID 3883). The federal laws in question are the Controlled Substances Act
and the Food, Drug, and Cosmetic Act and regulations adopted by the administering federal
agencies. Raglin does not expressly say why Ohio’s purported violation of those laws would
render his execution unconstitutional, the Court presumes he intends to alleged a violation of the
Supremacy Clause, Article VI, Section 2 of the Constitution.
Raglin is correct that federal habeas corpus is available to assert claims for certain
violations of federal laws in the course of state criminal prosecutions. “We have stated that
habeas review is available to check violations of federal laws when the error qualifies as a
“fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” Reed v. Farley, 512
U.S. 339, 348 (1994), citing Hill v. United States, 368 U.S. 424, 428 (1962); accord, United
States v. Timmreck, 441 U.S. 780, 783 (1979); Davis v. United States, 417 U.S. 333, 346 (1974).
8
Because Proposed Ground 44 is also a lethal-injection-invalidity claim, it is not
cognizable in habeas corpus, per Glossip and Campbell. Raglin objects, however, that “[t]he
decision in Campbell appears to have limited its cognizability analysis to Eighth Amendment
claims. . . “ (Appeal, ECF No. 289, PageID 4119).
However, the decision in Campbell was not limited to Eighth Amendment claims. Alva
Campbell pleaded a claim substantially identical to Raglin’s proposed Ground 44. (See First
Ground for Relief in Petition, ECF No. 1, Case No. 2:14-cv-1702, PageID 3.2) In Campbell, the
Sixth Circuit dismissed the entire Petition, including the Supremacy Clause/preemption claim.
Claim under Hurst v. Florida, 136 S. Ct. 616 (2016)
Raglin’s Forty-Fifth Proposed Ground for Relief reads:
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 A Sentence Of Death After Its Own Factual
Findings That Were Necessary To Make Raglin Eligible For The
Death Penalty.
(ECF No. 272-1, PageID 3912.) This claim purportedly arises under Hurst v. Florida, supra.
The Magistrate Judge denied an amendment to add this claim, relying on In re Coley, 871
F.3d 455 (6th Cir. 2017). Raglin objects that Coley was a decision under 28 U.S.C. § 2244(b) on
whether a second-or-successive petition could proceed and that framework is considerably more
restrictive than general retroactivity analysis under Teague v. Lane, 489 U.S. 288 (1989), which
must apply to retroactivity questions in a first habeas application such as Raglin’s.
2
Campbell expressly pleaded this as a violation of the Supremacy Clause.
9
The Magistrate Judge agrees that Teague provides the proper framework for analysis.
Under Teague, a new rule of constitutional law is not applicable to cases on collateral review
unless it is (1) a new “substantive” constitutional rule (e.g., those announced in Atkins v.
Virginia, 536 U.S. 304 (2002), and Johnson v. United States, 135 S. Ct. 2551 (2015)) or (2) a
new “watershed” criminal procedure rule. The rule announced in Hurst is new because the
Supreme Court had to explicitly overrule two of its precedents to reach the result, Spaziano v.
Florida, 468 U.S. 447 (1984 ), and Hildwin v. Florida, 490 U.S. 638 (1989). The result is not
substantive in that it does not place a category of persons or conduct beyond the possibility of
criminal punishment, but instead constitutionalizes the procedure to be used in reaching a death
sentence. It is surely not a “watershed” change: it is nowhere as significant as Gideon v.
Wainwright, 372 U.S. 335 (1963), the only case the Supreme Court has said would qualify for
this classification.
To the knowledge of the Magistrate Judge, every decision in the Southern District to
consider the question has found Hurst is not retroactive. Smith v. Pineda, 2017 WL 631410
(S.D. Ohio Feb. 16, 2017) and McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio
Feb. 15, 2017); Gapen v. Robinson, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15,
2017)(Rice, J.)3; Davis v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep. 25,
2017)(Sargus, J.), Lindsey v. Jenkins, Case No. 1:03-cv-702 (S.D. Ohio Sep. 25, 2017)(Sargus,
J.); Myers v. Bagley, Case No. 3:04-cv-174 (S.D. Ohio Sep. 12, 2017)(Marbley, J.)(unreported;
available in that case at ECF No. 126), and Robb v. Ishee, Case No. 2:02-cv-535 (S.D. Ohio Sep.
12, 2017)(unreported; available in that case at ECF No. 213)(Marbley, J.).
3
Judge Rice does not agree that Hurst announces a new rule, but agrees on the issue of retroactivity. Gapen, supra,
at *11.
10
Conclusion
Having reconsidered the matter as directed in the Recommittal Order, the Magistrate
Judge remains of the opinion that Raglin should be denied permission to add his proposed
Grounds for Relief 41, 42, 43, 44, and 45.
December 29, 2017.
s/ Michael R. Merz
United States Magistrate Judge
11
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