Raglin v. Mitchell

Filing 305

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO ALTER OR AMEND THE JUDGMENT - The Magistrate Judge adheres to his prior recommendation that the certificate of appealability in this case be expanded to include the question whether this Court was correct in denying Petitioner leave to amend to add lethal injection invalidity claims. Objections to R&R due by 7/5/2018. Signed by Magistrate Judge Michael R. Merz on 6/21/2018. (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.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION TO ALTER OR AMEND THE JUDGMENT

This capital habeas corpus case is before the Court on the Warden’s Objections (ECF No.
302) to the Magistrate Judge’s Report and Recommendations (ECF No. 301) recommending that
the Court grant Petitioner’s Motion to Amend the Judgment by expanding the certificate of
appealability (ECF No. 297). District Judge Barrett has recommitted the matter for reconsideration
in light of the Objections (ECF No. 303), and Petitioner has responded to the Objections (ECF No.
4).
Most of Petitioner’s claims in this case were dealt with on the merits in Judge Barrett’s
Opinion and order of September 29, 2013 (ECF No. 198), which also dealt with the certificate of
appealability question for the then-pending claims. However, final resolution of the case was
delayed by the controversy, involving this and other capital habeas cases, of whether lethal
injection invalidity claims could be heard in habeas as well as in the 42 U.S.C. § 1983 case
challenging methods of execution, In re: Ohio Execution Protocol Litig., Case No. 2:11-cv-1016,
1

in which Raglin is a plaintiff. Once that controversy was settled by In re Campbell, 874 F.3d 454
(6th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 138 S.Ct. 466, 199 L.Ed.2d 350 (2017),
this Court denied leave to amend to add lethal injection invalidity claims (R&R, ECF No. 287;
adopted ECF No. 295).
Neither the Magistrate Judge’s Report and Recommendations nor the adoption Order
discussed whether a certificate of appealability should be granted on the exclusion of lethal
injection invalidity grounds. Petitioner moved to expand the certificate to include that question.
Because judgment had already been entered, Petitioner had to use a procedural vehicle that could
result in an amendment of the judgment and chose Fed. R. Civ. P. 59(e).
The Magistrate Judge found Rule 59(e) was an appropriate procedural vehicle and the
question on which a certificate was sought was debatable among jurists of reason, given Judge
Moore’s dissent in Campbell and the contrary opinions of other Sixth Circuit judges in Adams v.
Bradshaw, 826 F.3d 306 (6th Cir. 2016), cert. denied sub. nom. Adams v. Jenkins, 137 S.Ct. 814,
196 L.Ed.2d 60 (Jan. 17, 2017). The undersigned had recommended a certificate of appealability
on the same question in Bays v. Warden, 2017 WL 6035231 (S.D. Ohio Dec. 6, 2017), adopted
2017 WL 6731493 (S.D. Ohio Dec. 29, 2017), and noted that stare decisis was also an appropriate
basis for certifying the question in this case (ECF No. 301, PageID 4178).
The Warden does not argue the merits of the appealability question either in her original
Memorandum in Opposition (ECF No. 209) or her Objections (ECF No. 302). Thus there is no
dispute between the parties about whether the cognizability of lethal injection claims in habeas
corpus is debatable among jurists of reason. Instead, the Warden objects only to the method of
getting that question before the circuit court.

2

The Warden cites no authority in point for the proposition that a Rule 59(e) motion cannot
be used to correct an omission in a judgment on an appealability question. Her citations from other
contexts make little procedural sense in this context.
When Congress enacted the AEDPA, it imposed the certificate of appealability
requirement on unsuccessful habeas applicants and made its issuance the work of the circuit courts.
See 28 U.S.C. § 2253(c)(1): “Unless a circuit justice or judge issues a certificate of appealability
. . . .” The circuit courts of appeals, however, made quick work of what would appear to be the
plain language of that statute by declaring that the certificate of appealability decision would be
made in the first instance by the district courts. Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997),
decided within a year of AEDPA’s adoption.
It is true, as Respondent notes (ECF No. 302, PageID 4183), that a district court decision
to grant or deny a certificate of appealability is not itself appealable. Sims v. United States, 244
F.3d 509 (6th Cir. 2001). Because of that, a habeas appellant can move to grant or expand a
certificate of appealability in circuit court itself. Id. But the Sims court did not hold that that was
the only available remedy. After Sims, the Supreme Court codified the preference for initial district
court decision of the appealability question by amending Habeas Rule 11 to provide district courts
“must” decide the appealability question at the time of a final adverse order. This Court did not
do that in the final order in this case. Nothing prevents us from correcting that omission by
granting the Motion to Amend.

Conclusion

Accordingly, the Magistrate Judge adheres to his prior recommendation that the certificate of

3

appealability in this case be expanded to include the question whether this Court was correct in
denying Petitioner leave to amend to add lethal injection invalidity claims.

June 21, 2018.
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).

4